KF 450 BIS CORNELL UNIVERSITY LAW LIBRARY The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1803 . ® IN MEMORY OF JUDGE DOUGLASS BOARDMAN « FIRST DEAN OF THE SCHOOL By his Wife and Daugh¢r A.M. BOARDMAN and ELLEN D. WILLIAMS eeeS a a iss hi DATE DUE THE STATUTE OF LIMITATIONS ADVERSE POSSESSION WITH AN APPENDIX CONTAINING THE ENGLISH ACTS OF LIMITATION BY _ HENRY F. BUSWELL AUTHOR OF THE LAW OF INSANITY, AND EDITOR OF TAYLOR’S LANDLORD AND TENANT, ETC. BOSTON LITTLE, BROWN, AND COMPANY 1889 Copyright, 1889, By Litris, Brown, AnD Company. Aniversity IBress ; Joun Witson AND Son, CAMBRIDGE. XN PREFACE. THE modern law of limitations is founded substan- tially upon certain English statutes enacted in the reigns of James rene e IV., and William IV. The statute of James had art of the law of the Amer- ican colonies; and the substance of the later statutes has been embodied, generally, in the legislation of the different states. In the text of the present work it has been the intention of the author to treat these stat- utes as making what might well be called the common law of limitations, and to state the general principles which have been applied to their interpretation by the English and American courts. In the notes, such legis- lative enactments modifying the general law as have been the subject of judicial interpretation will be found considered; but the writer found, early in the course of the work, that any attempt to state in detail all the stat- utory provisions of the different states upon the subject of limitations would be out of the question, unless, in- deed, he should be content to make a mere manual or digest of the local statutes, and to abandon the attempt to state with thoroughness those legal principles which are applied to the interpretation of all the statutes. So the writer has not affixed to the work a digest of the American statutes of limitations, since the local law is iv PREFACE. always easily accessible, and it is believed that the members of the legal profession prefer generally to consult the statutes themselves, rather than a digest, however carefully prepared. For convenience of ref- erence, the English statutes of limitation are printed in full in the Appendix. The plan of the work will be seen by referring to the Analytical Table of Contents. In the successive chap- ters will be found treated the general principles gov- erning the subject of limitations in law and equity ; the effect of new promises and acknowledgments to avoid the limitation; exceptions to the operation of the statute, however arising ; applications of the statute to actions of contract and tort, including trover and re- plevin; adverse possession generally; limitations of real actions and of actions involving the matter of trusts; and process, parties, and pleading. In the preparation of the work the writer has availed himself freely of the material furnished by Mr. Angell’s well-known work on Limitations, but all mat- ter adapted from that work has been carefully revised and rewritten. H. F. B. Boston, 1889. 0 32 on oe PO § 9. 10. 11. § 12. 13. 14. 15. 16. ANALYTICAL TABLE OF CONTENTS. INTRODUCTION. OF PRESCRIPTION AND LIMITATION. = Q 8 Definitions . . . OE Sy Title by Prescription. History aiid Taeidentis of, Bt eclee Me eso Prescriptive Title by Force of Statute.— Real Property . Title by Prescriptive Limitation. — Personal ee ie i Prescription applied to limit Remedies sis fae Statutes of Limitation justified by Public Policy . . . . As promoting Justice between the Parties . a As applied to Different Remedies . CON OP Ww rH CHAPTER I. OF LIMITATIONS GENERALLY. SECTION I. IN ACTIONS AT LAW. (a) History of. Origin of Limitations in England. . . 2... . 1... 1 The successive Statutes of Limitation. . . . a) “Ge ge AS Foundation of the American Statutes of Limitation Ws ok eB (b) Scope and Construction of. Statutes of Limitation not unconstitutional. . . 16 Statutes of the several States held to be Constintonal: Main. active Construction avoided . . . . eae oe ey Application of the Statute to existing Contracts < ee 4 ow a 19 Postponement of Rights of Action . . . . . 1... ss 2B Rule of Construction, generally 1... 1... 1. es 2 vi ANALYTICAL TABLE OF CONTENTS. PAGE § 17. Statutes of Limitation of the States govern the Federal Courts . 25 Nore. Alteration or Amendment of the Criminal Acts of Lim- TtAtOI Sas 233 oh tas Ge a ee BD. ANALYTICAL TABLE OF CONTENTS. vii PAGE § 38. Former Latitude of Construction as to new Promises . . . . 54 39. Acknowledgment formerly held Evidence ofa Promise . . . . 55 40. Stricter Modern Construction in England . . . se ee 56 41. Strict Construction early adopted in the United States - ee . 5B 42. General Rules to be deduced from the modern Cases . . . . 59 43, Applications of the Rule to special Cases . . . . . . . + 60 44, As to Debts due from Testators . . 61 45. Return of Debts by an Insolvent not an effectual Aknowiedg ment .. 63 46. Asknowletenient ig Mortgagee not “Binding on : Mertgures. — Subsequent Mortgage by Maker of Note an Acknowledgment . 64 47. Acknowledgment when implied from the Record in Equity . . 65 48. Acknowledgment of Breach of Contract, merely, not effectual. . 67 49. Waiver of Benefit of Statute by the Debtor.— Effect of . . . 68 Nore. — Review of the principal Cases in the older States upon the Effect of new Promises and Acknowledgments to avoid the Statute of Limitations, . 2. 2... 1 ee . 69 SECTION II. OF CONDITIONAL AND INDEFINITE ACKNOWLEDGMENTS. §50. In general, Statute attaches only when the Condition is fulfilled . 79 51. Rule applied to Promises conditioned on the Debtor’s Ability. . 81 52. Conditional Promises made before the Statute attaches . . » b4 53. Promises conditional on Proof ofa Fact . . . 85 54. Indefinite Acknowledgments ineffectual. == Tntentiort of Debtor a a Question of Fact .. . . . Sy He “a es ae 85 55. Acknowledgments indefinite as to Amount due Md et tae aoa 87 56. Burden on Plaintiff to establish the Amount duehim ... . 89 SECTION Il. OF ACKNOWLEDGMENTS BY ONE OF SEVERAL CO-CONTRACTORS. §57. General Ruleasto . . . . . . . 90 58. Immaterial whether Contract be ssa or faint and deveral . . 98 59. Application of Rule to Suits on Promissory Notes . . . 94 60. Acknowledgment by mere Guarantor ineffectual to bind the Pri cipal . 1. 96 61. Personal Renrcanntatiges of one ia joint Contractor nicl hauadi by Acknowledgment of the Other . . . . 97 62. Payment by Assignee or Trustee in aalveney not effectual as an Acknowledgment ... . iow se xo we 98 63. Acknowledgment by bankrupt Ga. poatnachdr bs. of Soahs 99 64. Acknowledgment by one Co-partner after Dissolution py. Gs 100 65. English Rule how far affirmed in the United States . . . . . 100 vili § 66. 67. 68. 69. § 70, 71, 72. §73. 14. 5. 76. § 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. §88. ANALYTICAL TABLE OF CONTENTS. Modified Rule supported by Weight of Authority . . Question discussed in New York. . . . . oe Principle. applied to Cases of Co-promisors generally spouse GB Statutory Modifications of the early Rule. — Lord Tenterden’s SECTION IV. OF ACKNOWLEDGMENTS BY AGENTS, EXECUTORS, ETC. (a) By Agents. By authorized Agents, effectual . Applications of the Rule 2 Generally, Husband and Wife cannot ‘pind each otber by Acknowl- edgment.— Part Payment . Bs ees oe oS Gat 35 (b) By Executors and Administrators. Held, generally, not to bind the Estate Reasons in Support of this Rule . ‘ : Contrary Authorities. — Promise must be express : Rule in Massachusetts . Norgr. — Acknowledgments to an Paoouiiar or 7 didintaistenior SECTION V. OF ACKNOWLEDGMENT BY PART PAYMENT. Part Payment as Evidence of an Acknowledgment . As to the Time of the Part Payment : Part Payment by the Debtor’s Repramnaliven _ ‘How ‘far effectual. . . . ‘ ace By giving new Note or Seouriepe Tinpieab of aniereet Rule as to the Application of Payments . . . Indorsements as Evidence of Part Payment. — By Payee or Obligee . ; i fe Application of the Toul 46 Promissory Notes. ; Part Payments made on Sunday. . . Mae oe Fact of Part Payment, how proved, generally. ‘ 23 To Person other than the Creditor, Effectof. . . . . . - Made otherwise than in Money . Brits SECTION VI. OF WRITTEN ACKNOWLEDGMENTS. Required by the Statute in England , But Acknowledgments by Part Payment still afbotual. _ ~ Proof of PAGE 102 104 106 109 110 lll 113 114 115 117 120 121 121 124 125 126 128 180 132 133 183 185 136 188 140 § 90. gl. 92. 93. 94. 95. ANALYTICAL TABLE OF CONTENTS. ix PAGE Written Acknowledgments must be signed. —Signed by Agents: 141 Effect of Agent’s Signature to prove Part Payment . . . . 142 Essential Requisites of the written Acknowledgment. . . . 142 Lord Tenterden’s Act as affecting Acknowledgments by Accounts 143 ‘Acknowledgments by Co-contractor under . . . 144 What Payments effectual under. . . . . . +»... . 146 CHAPTER III. EXCEPTIONS TO THE OPERATION OF THE STATUTE. § 96. 98. 99. 100. 101. 102. § 103. 104. 105. 106. 107. 108. “109. 110. § 111. 112. SECTION I. CLAIMS IN FAVOR OF THE GOVERNMENT. The King not bound by the Statute . . . . . . . s . 147 Reason of the Rule. . . . i Ae ale eae aca 18 Rule applied in the United States Le - . 149 Rule not applicable, generally, to municipal Ghrporations . . bl How applied to Grantees of the Government . . ... . 152 As between the States and the general Government . . . . 153 Rule does not apply in Favor of the Government as Grantee, WHEDy ok ee eg a ee we SECTION II. -OF DISABILITIES IN PERSONAL ACTIONS. (ay Generally. Designated by the Statute of 21 James. . . . . . . . 155 Statutes creating disabilities strictly construed . . . 156 But Exception applied by Construction to Action in heat 158 Disabilities arise only from express statutory Provision . . . 158 Persons under Disability may sue.—When by Guardian or Committee. . . 159 Burden to prove Dicability on Hoff Plaine, — Orie proved — sumed to continue . . des ee (Sees . 160 Cumulative Disabilities not effoctual Pome ang: ee er oe LOL, One Disability not to be merged with another . . . . . . 163 (b) Absence from the Jurisdiction. Construction of Term “Beyond the Seas” . . . . . . . 168 Exception does not occur in several States . . . . . . . 166 §113. 114. 115. 116. 117. § 118. 119. 120. 121. 122. 123. 124. 125. 126. § 127. 128, 129. 130. 181. 132. 183. ANALYTICAL TABLE OF CONTENTS. PAGE Construction of Words “Absent from the State”. . . . + 167 Rule how applied to Corporations. . . 3) Sotg? ce: e188 Benefit of Exception extended to Foreigners Sy We ty ee Res, 9g AD) Exception in Case of absent Defendants . . .« 170 What constitutes a Return by Defendant to youd the Exception 171 SECTION III. OF DISABILITIES IN REAL ACTIONS. Provision of the English Statute in Regard to. . - . 173 Exception only in Favor of Persons having the ee Right _— New Disabilities. . . » . 175 Rule as to voluntary and involuntary Disabilities Beare 176 Cumulative Disabilities not within the Exception. — Statute strictly construed . . oss ha. Gl ale Gul TPT Construction of the Word “ Death” DO ole aie Bh cat aay GOS ose TO Co-existing Disabilities . . . be Bie a GO, I oe AD) Application of the Exception as to Thine 6 be we e ae x 180 Rights of Reversioner preserved . . . +... .. . I8i Rights of Co-tenants . 2 2 1 1 7 ee ee ew ew we 182 SECTION IV. EXCEPTIONS ARISING FROM NECESSITY. Formerly not admitted . . . . 183 Arise from invincible and unforeseen Nevesaity. When ‘the Courts areshut . . . . es ee oe we ~ « « 185 Disability arising from State of War ose 186 Principle applied in Cases arising out of the War of the Rehel- lion . 2 we 188 Incapacities created by ‘Act of ifaw — Operation of the Statute suspended. . . - a os ee oH sae ce 189 Incapacity created by Statute & fae a8 190 Insolvency or ee does not suspend the ‘Statute, — _ Sty Laws ... ues 2 ie. 191 CHAPTER IV. APPLICATION OF THE STATUTE TO ACTIONS OF CONTRACT. SECTION I. WHAT ACTIONS MAY BE BARRED. §134. Generally. 2 2 6 ee ee ee ee ee ww, 198 § 135. § 136. 187. 138, 139, 140. 141. 142. 143. § 144. § 145. § 146. 147. 148. § 149. 150. 151. § 152. § 153. ANALYTICAL TABLE OF CONTENTS. (a) Of Account. Action or Bilfor 2 6 1. 1 eee ee - (bd) Of Assumpsit. Statute applied to in Express Terms, or by Construction Application of the Statute to Specific Cases . Mo Consequential Damages arising from Torts . . . Different Application of the Statute to Actions of Tort aud ee sumpsit for the Same Cause. . . Statute bars Claims secured iy Collateral Pledgo.— nee: re- mains good . . Seite Gey Gob uiGea sok Limitation applies to Set-Offs ics Except in case of Demands arising out af the same © Subject Matter - Specific Cases under the Application of the Rule and Exception (c) Of Debt. Distinguished from Assumpsit. — Statute applied to . (d) Of Covenant. When it lies. — Assumpsit in Natureof. ....- SECTION II. SPECIALTIES, (a) Generally. Statute of James I. not applicableto . . . . . . Debts created by Statute not barred . . . But the Liability must be by Direct Imposition ‘of the Statute . . (b) Judgments. Actions founded on, not barred. —- Of Courts not of Record. Foreign Actions on, generally barred . . . iriee Oe ay But made Specialties by Statute or Constroction (c) Awards. — Sealed, are of the Nature of Specialties . . . . + - (d) Indentures of Lease. Actions on, not barred. . . . 1. © xi PAGE 193 196 197 198 198 199 202 203 204 205 206 207 208 209 212 214 217 217 218 xii ANALYTICAL TABLE OF CONTENTS. (e) Bonds. §.154. Actions on, not barred. — By Surety against Principal. — For Contribution 2... 1 we (f) Actions for Legacies. § 155. Not barred, as being to enforce Trusts (g) Presumption as to Specialty Debts. § 156. Presumed satisfied after Twenty Years SECTION III. NOTES AND BILLS. §157. Limitation runs from the Date of the Note. — Mortgage Notes... nuk a 8 158. Rule applied to Tasirands ‘Notes 958 foe 159. Notes payable in a Certain Time after Demand, or © after Sight or Notice . . - oo eee 160. Rule applied to Bank Glgake. et. _ a Mcuecuenedts 161. Grace. —Note delivered on Condition. — To secure Brevious Advantes: og) gig ee RO Ge we 162. Interest Coupons : 163. Presentment of Bill at a Bartionlar Place: 164. Action by Acceptor or Payee against Maker or Tndarey 165. Of Agreements to suspend the Limitation . . . . 166. Asto Attested Notes. 2. 2. 2... ee ee Nors. Actions for Usury SECTION Iv. MISCELLANEOUS SIMPLE CONTRACTS. (a) Actions for Money payable in Instalments. § 167. Statute runs on Hach Successive Instalment . . . . . (b). To enforce Conditional or Contingent Promises. §168. Statute does not run until the Condition is performed . 169. Liability ee ona eee or Future Event. — Stock. holders . . . Se ee ee ee a ee §170. Special Cases 2. 1 1 wwe ee ee ee te — (¢) To recover Money paid by Mistake. § 171. Generally, Statute runs from Time of Payment . 172. Application of the Rule in Suits by Executors or dAflcciaiatentora PAGE 219 220 222 223 225 225 227 228 229 230 230 231 232 235 236 237 289 240 243 244 ANALYTICAL TABLE OF CONTENTS. xiii (4) Lo recover Money upon Failure of Consideration. PAGE §173. Statute runs from Time of Failure. — Specific Cases . . . . 244 174. Mistake asto Landsold. . . . Geo ae 286 175. Action to recover Money paid on Parol Contract to convey. . 248 (e) On Warranties. §176. Generally, Limitation runs from Time of Sale. — Exceptions . 249 177. On Covenants in Deeds. — Of te of Title. aes Incumbrances . . . © 3 . ‘ . . 250 (1) For continuing Services. ee § 178. Generally, Limitation runs only from Completion of the Service 250 (g) Between Co-tenants and Co-contractors. — Contribution. §179. General Rule applied . . . sow. 253 180. Joint Makers and Indorsers of Notes Co-partners . . . . 258 (h) On Contracts of Indemnity. § 181. Generally, Limitation does not run until Plaintiff is damnified . 254 182. Applications of the Rule. . . de genie) at bs oe are IDO. 183. Rule waived by Terms of the Gontset we thee aw 4 256 184. Guaranties of Indemnity indefinite as to Time . . . . . . 257 G) By Surety against Principal. §185. Limitation runs from Time of Payment . . . . . . . . 258 186. Limitation applied to Successive Payments . . 261 187. Surety paying by Note. — Prior and Subsequent ‘{alersérs of Bills ee ww es . . 261 188. Actions for Contribution aint: Surety’ 8 ‘Representatives « . 262 189. Cause of Action against Co-surety after Judgment. — When It ATISES! 3 4) ee ES Sw Ow ee DES 190. Collateral Security. 2. 2. 2. 1 1 1 we we ew ee 268 (j) Miscellaneous Cases. §191. Action against Tenant for Mesne Profits. — Mandamus. — Beata Gos cay eo ew we ORM Nots, Limitation of Divorce Proceedings coe ee eee 265 SECTION V. MUTUAL ACCOUNTS. § 192. Statute generally runs from Date of Last Item. : . . . . 265 193. Item may appear on Hither Side of the Account.— Proof . . 268 xiv §194. 195. 196. 197. 198. 199. § 200. 201. 202. 203. 204. 205. 206. 207. 208. ANALYTICAL TABLE OF CONTENTS. Accounts must show Reciprocity of Dealing. — Tradesmen’s Accounts . . . . Mautuality depenttar on Agreement of ‘the Pattieg expres or implied. . . oe Applications of the Rule 2.U0 ate sat Limitation runs from Date of Stated hank Written he knowledgment ao : Distinction between Accounts dosed and Kooounta sisted. _— Question of Fact . . Paola igh «Se Balance found may be Foundation of New Account SECTION VI. MERCHANTS’ ACCOUNTS. Excepted by Statute of James. — Reason. — When = applies. . . a Whether applied to Ageoinite: more then Six Years Old. _ Bon: flicting Authority . . . oak OBESE English Rule settled in Favor of the Anplaation ‘4 Weight of American Authority in Same Direction . Rule in the Federal Courts . . . bn ae What Cases fall within the Exception , eee Does not embrace Transactions between Banks Nor Accounts between Co-partners . «© +» . « + Settlements presumed after Twenty Years CHAPTER V. 271 273 275 276 277 279 280 281 282 284 285 286 287 288 APPLICATION OF THE STATUTE TO ACTIONS OF TORT. § 209. 210. 211. 212, 918. 214. SECTION I. TORTS QUASI EX CONTRACTU. Limitation runs from Date of Tortious Act, . . . . Reasons forthe Rule . . . . Applications of the Rule. . . Se Aen & dye ge L4D Ch Rule of Damages . . . slog) ee When Cause of Action acernes. 2. 2. 2. 2. 1 ww Actions against Sheriffs . . 2... 1... ew : 289 290 292 293 293 294 § 215, 216. Ql7. § 218. 219. § 220. 921. 229, § 223. § 224. § 295. 226. § 297. 228. 229. 230. 231. 232. 233. 934. ANALYTICAL TABLE OF CONTENTS. xv SECTION II. TORTS, GENERALLY. PAGE Limitation runs from accruing of Damage . . . « . . . 296 Illustrations of the Rule . . 2. 2 1. 1 1 1 1 ew es 298 Actions for Injuriesto Land. . . . . . . . 1... 299 (a): Slander and Libel. Distinctions observed. — Slander of Title . . . . 300 In Slander, unless Statute pleaded Plaintiff's Proof not limited . 802 (b) Zrover. Limitation runs from Time of Conversion.— Demand . . . 302 For Things Tortiously taken runs from Time of Taking . . . 303 For Chattels claimed by Adverse Possession . . . . . . 304 (c) Replevin. Limitation runs from the Taking . . . . . . ~ . . . 806 (d) Detinue. Limitation runs from Demand and Refusal . . . . . . . 806 (e) Trespass. Quare Clausum. — Injury to the Person... . . . 807 Criminal Conversation. — Seduction. — Loss of Service . - . 808 CHAPTER VI. ADVERSE POSSESSION. SECTION I. GENERALLY, INCIDENTS OF, Claim of Right the Foundation of . . ... . . . we » 810 Under the English Statutes. . . 1... ...... 812 Effect of, on the Legal Title. . . . . . 1... + ss 818 Absolute Bar to Remedy created by . . . 2... 1. 6815 Title by, good against an Ejectment . . . . ... . 3816 Like Rules applied in Equity . .. . oe o « 318 Whether Disseisin in Any Case, a Question of Fact - . « + 818 Character of Claimant’s Possession dependent on Circumstances 320 xvi ANALYTICAL TABLE OF CONTENTS. PAGE § 235. Possession by One in Behalf of Another. . . . . +. . 821 236. Burden to prove on Party setting up . . 822 237. To maintain, opposing eee must have » Right of agtion, _— Disseisin . . j eee we wo « 1898 238. Deed of Disseisee, affect af nee Bee a Se ine ee aa GE a BRD) SECTION II. OF THE CONTINUITY AND PRIVITY OF POSSESSION. § 239. Mere Successive Possessions not effectual . . . . 330 240. To render Successive Possessions effectual, Privity must gabisise - between them . . top eke we e B82 241. Dawity exists between Vendor ani Veulee ee ee ree SECTION III. EVIDENCE TO PROVE ADVERSE POSSESSION. § 242. Acts of Ownership, generally . . . . . 1.» - . . . 886 243. Declarations of Adverse Claimant . .- ... . . + « 837 244, As to Uninclosed Flats and Flowed Lands . . . 338 245, Cutting Timber or Fuel on Uninclosed Lands. — Bailing Roads, Dams, ete.. . 339 246. Clearing and Cultivating. — Howat. — Ceifletangina. _— Tak. ing Seaweed or Gravel. — Building Sidewalk wee ee 840 247. Inclosure.— Laying out Lines. . . ©... . . , . 841 248. Payment of Taxes . . . - 343 249. Notoriety of Possession. — Effect of, confined to Limits oc- cupied dy Re Bi Rs AE creep Se ; 344 250. Mistake in Possession — Existing Division Lines. Th Projections . . . heise 346 251. Effectual Occupation depends on Gineimictaticese ocax Poe session not effectual . . . 2. 1 we ww we 8A (a) As to Wild Lands. § 252. Constructive Seisin of. — Possession limited to Actual Occu- pancy.— Patents . 2. 1. 1. 1 1 ww we ew ee. 848 253. Variations fromthe Rule. . . . . 1... ... . 8851 SECTION IV. COLOR OF TITLE. § 254. Possession under, co-extensive with the Grant . . . . . . 352 955. Reasons for the Rule.— Applications. . . 354 256. Constructive Possessions, how limited. —Conilicting Poistadions 356 § 257. 958. 959. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. § 270. 971, 272, 273, § 274. 275. 276. APPLICATION OF THE STATUTE TO REAL ACTIONS. § 277. 278. § 279. 280. ANALYTICAL TABLE OF CONTENTS. Knowledge of Defect in Title not Essential to . General Rule not applied to Uncultivated Lands Conveyances to give Color of Title. . . . Possession under, bars Title by an Elder Desh Applications ofthe General Rule . . . . +. Does not arise under Void Foreign Grant, semble . Nor, in the United States, from Indian Grants . May exist without Written Conveyance. — Examples But Claim of Right must distinctly appear . And Consideration must be paid Semble, may arise from Parol Gift . Must be accompanied by Occupation . Mixed or Opposing Possessions under « SECTION V. OF INTERVENING ESTATES. Rights of Reversioner preserved . . : Not prejudiced by Acts of Intervening Tenant . Qualifications of the Rule Disseisin of Intervening Tenant not to prejudice Remainder- man SECTION VI. HOW INTERRUPTED. Entry to support Ejectment. — To be made Animo Clamandi . Entry in Behalf of Person entitled . Different Rights of in Same Person CHAPTER VII. SECTION I. GENERALLY, English Statutes concerning. . . . . s+ e Droitural and Possessory Actions . (a) Writ of Right. Defined. — When it lies . Requisites to Maintenance of in England b xvii PAGE 357 357 359 362 363 364 365 366 367 368 369 370 371 373 374 376 378 380 382 382 385 386 387 388 Xvili § 281. 282. 283. § 284. 285, 286. § 287, 288. § 289. § 290. § 291. 292. § 293. 294. 295, § 296. 297. 298, 299, 300. 301. 302. 308. ANALYTICAL TABLE OF CONTENTS. Rules relaxed in the United States . Pw e 3 Demandant held to Strict Proof. . . . sees Different Limitations as against Ancestor anil Demandant ‘ (b) Writs of Formedon. Different kinds of. — When they lie How limited in England . Oe ee ae ee In the United States . 2. 2. 1 1 es 1 ww te te (c) Writ of Entry. Defined. —Forms of . Limitation of . foe 4 (a) Writ of Dower. Not within the Earlier Statutes of Limitation. — Sree Provi- sions in the United States ads ‘ (e) Real Actions reduced in Number by Statute. By the Statute3&4Wm.IV.. . .... 2... (f) Real Actions in the United States. All Titles essentially Allodial. ‘ : Abolition of, in the Older States. — General ‘imnitetion 2 SECTION II. OF EJECTMENT AND THE RIGHT OF ENTRY. History of the Action of Ejectment. . . . Nature of the Action . , Depends on Plaintiff's Right ae Entry. Thee Teincieotiow: a plied se ose Modine cll we ee GP og Bake wah alee SECTION III. AS BETWEEN CO-TENANTS, Generally, no Adverse Possession unless an Ouster Reasons for the Rule . Circumstances to constitute an Guster ‘i Co-tenant’s Occupation presumed not Adverse . . Principle applied to Specific Cases . Intent proved by Words or Acts. — Reig of Rents anil Profits . . ee < Sse but a promise made by the wife, in the presence of the husband, and tacitly assented to by him, will revive the debt.6 So a part payment 1 Pittam v. Foster, 1 Barn. & C. 248. 2 Kline v. Guthart, 2 Pa. 490. 3 Powers v. Southgate, 15 Vt. 471 ; Stevenson v. Craig, 12 Neb. 464. 4 Farrar v. Bessy, 24 Vt. 89. 5 Neve v. Hollands, 12 Eng. L. & E. 398. ® Orcutt v. Berrett, 12 La. Ann. 278. Where a.feme sole, payee of a 8 114 NEW PROMISES AND ACKNOWLEDGMENTS. ([CHAP. II. by the wife on her husband’s debt does not take it out of the statute unless it appears that the husband authorized the payment.1 And, generally it would seem that part payment made by husband or wife for, and by the express authority of, the other will avoid the statute.? (b) By Ezxecutors and Administrators. § 73. Held generally not to bind the Estate. — Upon the ques- tion whether an acknowledgment or admission of an executor or administrator will be binding as against the heirs or devisees of the original promisor, there is some conflict of authority? But, upon the principle admitted by the modern decisions that the new acknowledgment becomes effectual, if at all, as creat- ing a new contract founded on the original consideration, it is difficult to perceive how such an acknowledgment made by the executor or administrator can be taken to bind the heir or devisee. Such a rule would seem to involve the admission that he has authority to make a new contract in behalf, but adverse to the interests, of those for whose benefit he is ad- ministering his trust. It was considered by Kent, C., that such an acknowledgment or admission would not bind the real estate of the deceased promisor. “Is the heir,” he in- quires, “to be charged, at the mere pleasure of the executor, with the debts of the ancestor? Does it rest entirely in the discretion of the executor, whether the heir is or is not to be permitted to use the statute of limitations, which the law has provided as a means of defence against a simple con- promissory note, married, and her husband survived her, and the husband did not reduce the chose in action to possession, though he received the in- terest during her life, it was held, in an action by her administrators, that the payment of interest was to her agent, and was an answer to the plea of the statute. Hart v. Stephens, 6 Q. B. 987. 1 Butler v. Price, 110 Mass. 97; Same v. Same, 115 id. 578. 2 In Butler v. Hogadone, 45 Mich. 390, it was held that the foreclosure of a mortgage was not barred where there was proof of payments made within the period of limitation by the mortgagor as agent for his wife, who held the mortgagee’s interest by a mesne assignment. 3 Tt has been shown that the executor or administrator of a deceased co-contractor cannot bind the surviving co-contractor by a new acknowl- edgment or promise. See § 61, ante, and cases there cited. SEC. IV.] ACKNOWLEDGMENTS BY AGENTS, ETC. 115 tract demand, which perhaps he knows to be unjust, though his ancestor has not left him the requisite proof?” 1 In Con- necticut, where the executor has control over the real and personal estate of his testator, it was held that the execu- tor’s acknowledgment would not support an action against him in his capacity as executor? And in the Supreme Court of the United States, Marshall, C. J., said, in a suit brought against the administrator: “This is not a suit against the original debtor; it is brought against his representative, who may have no personal knowledge of the transaction. Dec- larations against him have never been held to take the promise of a testator or intestate out of the act. Indeed the contrary has been held.”? So it was held that admis- sions and promises of the intestate’s heirs, who without letters of administration were managing the estate, did not con- tinue or revive the indebtedness of the intestate; and that a judgment obtained against such persons as executors de son tort did not have the effect to arrest the operation of the statute; and that if an administrator, after the bar of the statute was complete, made the most unqualified acknowl- edgment, this would not thereafter estop him from pleading the statute.* § 74, Reasons in Support of this Rule. —In Pennsylvania it was determined, after careful consideration, that an action on his own promise will not lie against an executor or admin- istrator in his official capacity ; and the opinion in the case, by Gibson, C. J., would seem conclusive of the point. He says: ‘When it was determined that a recognition of the old debt is no more than evidence of a new promise, which, when made to the representative of a decedent, can be sued 1 Mooers v. White, 6 Johns. Ch. 373, 874. And see Lee v. Downey, 68 Ala. 98. 2 Peck v. Botsford, 7 Conn. 176. 8 Thompson v. Peters, 12 Wheat. 565. This expression is obiter dictum, it being held that the acknowledgment relied on to take the case out of the statute would not have had that effect even as against the original debtor. : 4 Bolt v. Dawkins, 16 S.C. 198. See Coyle v. Creevy, 34 La. Ann. 539. 116 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. by him but in a personal character, it was virtually deter- mined that the same recognition by a personal representative is but evidence of a new promise, on which he may not be sued, otherwise than in his personal character, without over- turning some of the most firmly fixed principles of the law; for nothing is better settled than that an executor or admin- istrator is answerable, in his official character, for no cause of action that was not created by the act of the decedent himself. .. . Inactions against the personal representative, on his own contracts and engagements, though made for the benefit of the estate, the judgment is de bonis propriis; and he is, by every principle of legal analogy, to answer it with his person and property. ... And as he cannot charge himself per- sonally without a new consideration, he cannot charge the estate, on the foundation of the old one, to the prejudice of the creditors, whose fund might be materially lessened by it. He is not bound to plead the statute, because he may know the debt to be a just one; and for that reason only, the mat- ter is left to his discretion ; but it follows not that he may tie up his hands from using it, when the time has come, by a mistaken concession, or an engagement which has no consid- eration to bind him personally or officially.”1 In a subse- quent case in the same state it was held that, as the old 1 Fritz v. Thomas, 1 Whart. 66. In reference to previous decisions of the court in Pennsylvania, which were relied on by the plaintiff, Gibson, C. J., said: ‘‘ In Jones v. Moore, 5 Bin. 573, and subsequently in Bailey v. Bailey, 14 Serg. & Rawle, 195, and Scull v. Wallace, 15 id. 231, it was doubtless taken for granted, that a recovery may be had against a plea of the statute, on proof of an acknowledgment by the personal representa- tive. But it is to be remarked that the point has not been adjudged, and that no recovery has in fact been had; and the inquiry is consequently not clogged by the authority of a precedent. In respect to the first of those cases, it is fair, too, to say it was the first step taken by this or per- haps any other court, in returning to the spirit and letter of the statute.” He also declared that the promise of a personal representative ‘* gives no action against him, unless it be sustained by some other consideration than the previous debt, which imposes no moral obligation to pay it ont: of his own pocket, especially since he has been deprived of all color of title to the residue. Had the judges, when they determined that a prom- ise to the representative of a decedent must be declared on as such, also determined that it must be declared on as such when made by him, they SEC. IV.] ACKNOWLEDGMENTS BY AGENTS, ETC. ay promise was not revived, but superseded by the new one, the consideration of a moral obligation would be wanting to make the executor personally liable. And the doctrine upon this subject, thus expressed in Pennsylvania, appears to have been adopted in Maryland,? Mississippi? Virginia,t South Carolina,® Texas,® and Indiana.’ So it is held that a part payment by an executor or administrator will not revive the original debt.® § 75. Contrary Authorities: Promise must be express. — There are, however, weighty authorities in support of a con- trary doctrine upon this subject. In England it appears to be settled, in opposition to the view of the law expressed by Kent, C.,? that an executor is not compellable, either in law would have restored the law to its primitive symmetry, and suggested a principle that would have entirely extinguished the notion of revival, which, for want of it, seems to have lingered in its embers through the succeeding cases; for the forms of the law are the indices and conserva- tories of its principles. It would not only have indicated the necessity of a special consideration, to support the promise of a representative, but it would have disclosed a bar to an action against two or more on a promise by one.” And, further : ‘‘ It would be hazardous to expose the estate to the consequences of? the executor’s “ inexperience or ignorance of the demands made upon him. We know how perilous a thing it is for the debtor himself, though armed with knowledge and vigilant to guard against surprise, to converse about a debt barred by the statute; but the peril would be overwhelming, if the estate were to be jeoparded by the mistakes of one who is bound to parley, and has not only everything to learn, but to learn it from those whose interest it is to mislead him.”’ 1 Reynolds v. Hamilton, 7 Watts, 420. And see Clark v. Maguire, 35 Pa. St. 259. 2 Miller v. Dorsey, 9 Md. 317. 3 Henderson v. Ilsley, 11 S. & M. 9; Sanders v. Robertson, 23 Miss. 389; Huntington v. Babbitt, 46 id, 528. * Seig v. Acord, 21 Gratt. 265. But see Tazewell v. Whittier, 13 id. 329. 5 Haselden v. Whitesides, 2 Strobh. 353; Bolt v. Dawkins, 16 S.C. 198. 6 Moore v. Hardison, 10 Texas, 467; Moore v. Hillebrant, 14 id. 312. 7 Riser v. Snoddy, 7 Ind. 442. § Forney v. Benedict, 5 Pa. St, 225; Miller v. Dorsey, supra. See also Henderson v. Ilsley and Haselden v. Whitesides, supra. ® See § 73, ante. 118 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. or equity, to plead the statute of limitations against a claim otherwise well founded, and that he may, at his discretion, pay a debt barred by the statute, even when the personal estate is insufficient to pay the debts, thereby throwing the burden thereof upon the devisees of the real estate.1 So he may retain in his hands assets sufficient to pay such debts due to himself,2 even when such debts had become barred in the testator’s lifetime.2 And the rule that the administrator or executor may bind the decedent’s estate in favor of a cred- itor whose claim has become barred by the statute, appears to be recognized in England, at least with the qualification that the promise, to be effectual, must be express and not implied. “ As against an executor,” says Abbott, C. J., “an acknowl- edgment merely is not sufficient to take a case out of the stat- ute; there must be an express promise.”* And the promise must be made in the executor’s representative capacity.6 So 1 Lewis v. Rumney, L. R. 4 Eq. 451; Norton v. Freeker, 1 Atk. 524; Williamson v. Naylor, 3 Y. & C. 211, note a. See, contra, Seig v. Acord, 21 Gratt. 265; Huntington v. Babbitt, 46 Miss, 528. 2 Stahlsmidt v.. Lett, 1 Sm. & Giff. 415; Courtenay v. Williams, 3 Hare, 539; Coates v. Coates, 33 Beav. 249. 8 Hill v. Walker, 4 K. & J. 166. See, contra, Richmond, Pet’r, 2 Pick. 567; Rogers v. Rogers, 8 Wend. 502; Hord v. Lee, 4 Mon. (Ky.) 37. But an executor or administrator never has the right to pay a debt or charge which is extinguished, and not merely barred by statute. Lewis v. Rumney, L. R. 4 Eq. 451. * Tullock v. Dunn, Ry. & M. 416. And see Atkins v. Tredgold, 2 B. & C. 23; M’Culloch v. Dawes, 9 Dow. & Ry. 40; Briggs v. Wilson, 5 De Gex, M. & G. 12; Williams on Executors (7th ed.), 1947; Toft v. Stephen- son, 9 Eng. L. & E. 80. The same distinction is recognized in the earlier _ cases in Virginia. Lewis v. Bacon, 3 Hen. & Munf. 105; Henderson v. Foote, 3 Call, 248; Epes v. Dudley, 5 Rand. 487; Tazewell v. Whittier, 13 Gratt. 320. And in Kentucky. Head v. Manners, 5 J. J. Marsh. 255. It seems that a notice in a newspaper by a personal representative that he will pay all debts justly due from his testator will prevent a debt being barred by the statute. But it was held that a debt was not taken out of the statute by an advertisement published by the administrator, requesting all per- sons having claims on the estate to send in statements of their demand, prior to their being laid before A. B., by whom the persons claiming to be creditors are to submit to be examined touching the same, if he shall see occasion, in order to their being approved and paid, or rejected, if such latter course be deemed expedient. Jones v. Scott, 1 Russ. & Myl. 255. 5 Tullock v. Dunn, supra; Scholey v. Walton, 12 M. & W. 510. SEC. IV.] ACKNOWLEDGMENTS BY AGENTS, ETC. 119 in New York! and New Jersey,? an express promise, by the executor, to pay was held to be sufficient to remove the bar of the statute. And in Maine the court held that “ declara- tions or acknowledgments, from which a new promise might be inferred, if made by the debtor himself, when made by an executor or administrator will not be sufficient to charge the estate ;” but “there must be a clear agreement or promise to pay.”® It may be difficult to perceive a sound reason for hold- ing that the estate of the decedent may be bound by a direct, but not by an implied, promise of the executor or administra- tor. The doctrine that the personal representative may bind the estate at all being once admitted, this qualification of the broad doctrine would seem to be arbitrary, and introduced in order to lessen the injustice and inconvenience that might in some cases follow a strict application of it. In Alabama it was held that the administrator’s acknowledgment might re- move the statute bar where the case was against him only, after the decease of his co-administrator;* and in Kentucky it was held generally that a promise by an executor takes the case out of the statute ;° and so in Georgia, when the action was not barred in the lifetime of the intestate® It is held in 1 Johnson v. Beardslee, 15 Johns. 3. In Deyo v. Jones, 20 Wend. 491, the question was whether the admission of an executrix was sufficient to take the note of the testator out of the statute. The executrix, as legatee, had consented, in accounting before a surrogate, that such a note, barred by the statute, might be charged against her share of a residuary fund. It was held that this consent could not be converted into an acknowledg- ment of indebtedness and willingness to pay, in an action against her as the executrix of her husband. 2 Shreve v. Joyce, 36 N. J. 44. 8 Oakes v. Mitchell, 15 Me. 360. In this case the words, ‘‘an arrange- ment will soon be made to pay the note. I calculate to pay it, and I always calculated to pay it,” addressed by the administrator of an estate to the holder of a note barred by the statute, were held not sufticient to charge the estate. * Hall v. Darrington, 9 Ala. 502. In Starke v. Wilson, 65 Ala. 576, it was held that part payment by a sole executor or administrator prevents the running of the statute as to the personal assets, but, under the statute of frauds, not as to his interest in lands devised. 5 Hord v. Lee, 4 Mon. 36; Northcut v. Wilkins, 12 B. Mon. 408. 6 Marietta Savings Bank v. Janes, 66 Ga. 286; Griffin v. Baker 120 NEW PROMISES AND ACKNOWLEDGMENTS. [(CHAP. II. Maryland that part payment by an administrator will take a debt out of the statute as against an administrator de bonis non; and if the administrator, being a creditor, retains certain sums in part payment, the same rule applies. § 76. Rule in Massachusetts.—In Massachusetts, it was held by Shaw, C. J., that a promise made within six years by the guardian of a spendthrift, to pay a debt due from the ward, would take the debt out of the statute; the court being of opinion that it was within the principle of an acknowledgment by an executor, which, it was said, in that commonwealth, had been held sufficient to avoid the operation of the statute ; not only asa mere promise of the executor, to be declared on and proved as his own personal obligation,? but as continuing the existing promise in force, against the party or estate originally liable.2 It will be observed that the opinion in this County Court Justices, 17 id. 96. See Walker v. Cruikshank, 32 La. Ann. 282. 1 Semmes v. Magruder, 10°Md. 242. And see Quynn v. Carroll, id. 197. It is held that an admission by one co-executor of a debt due from his testator is nowhere receivable as evidence in a suit for the debt, against another co-executor, to establish the origin of the demand, as to make the other personally liable; though otherwise to take it out of the statute, if the original demand against the testator is aliunde established. Hammon v. Hunt, 4 Cow. 493; Deyo v. Jones, 20 Wend. 491. So the fact that the payment is by one of two joint administrators, without the knowledge of the other, makes no difference. The administration, in contemplation of the law, is a unit. McLaren v. McMartin, 36 N. Y. 88; Heath v. Grenell, 61 Barb. 190. 2 But see Tullock v. Dunn, Ry. & M. 116; Scholey v. Walton, 12 M. & W. 510, as cited ante, § 75. 3 Manson v. Felton, 13 Pick. 206. Shaw, C. J., cites as authority Brown v. Anderson, 13 Mass. 201, but the expression on the point in that case seems to have been obiter dictum. Commenting upon the earlier cases in Massachusetts, Daggett, J., in Peck v. Botsford, 7 Conn. 176, says: ‘‘ Baxter v. Penniman, 8 Mass. 134, shows only that an admission made to an executor or administrator is sufficient to take a case out of the statute of limitations. The debtor himself may certainly waive the statute. In the opinion given, however, the court speak to the following effect: ‘An admission by or to an executor or administrator, after six years, will,’ etc. So far as that opinion regards an acknowledgment by an executor or administrator, the case did not call for it, and therefore it SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 121 case rests, apparently, upon the theory that the new promise is of effect as being a continuation of the former promise, not as creating a new promise upon the original consideration, a theory which is not accepted by the modern law.! And later, it was held in the same state that part payment of a debt made by the debtor’s administrator takes a debt out of the statute, though no promise was then made to pay the balance.” Note. Acknowledgments to an Executor or Administrator. Since the personal representative of the deceased creditor stands in the place of such creditor, and succeeds to all his rights touching the collection of debts, it is evident, if the debtor make a new acknowledgment or promise to the executor or administrator, which, if made to the deceased creditor, would have had the effect to remove the bar of the statute, that the debtor will be bound by such promise or acknowledgment. This principle has often been recognized. Martin v. Williams, 17 Johns. 330; Baxter v. Penni- man, 8 Mass. 134; Jones v. Moore, 5 Binn. 578. And see Emerson v. Thompson, 16 Mass. 429; Peck v. Botsford, 7 Conn. 179. It has been held that a promise by A to the widow of the deceased before the appoint- ment of an administrator, to pay A’s note, does not preclude A from pleading the statute of limitations when sued by A’s administrator. Maxwell v. Reilly, 11 Lea (Tenn.), 807. But when the widow after- wards becomes the administratrix, such acknowledgment, or a part pay- ment, may suspend the statute. See Townsend v. Ingersoll, 43 How. Pr. 276, 12 Abb. Pr. (N. 8.) 354. SECTION V. OF ACKNOWLEDGMENT BY PART PAYMENT. § 77. Part Payment as Evidence of an Acknowledgment. — The fact that a party has made a part payment on a debt within six years from the time when such debt was incurred is evidence for a jury tending to show an acknowledgment, is entirely obiter. In Emerson v. Thompson, 16 Mass. 429, the same doc- trine is recognized, on a case where a new promise was by an executor, and the only case cited is that in 8 Mass. 134, which, as has been shown, did not affect the point in controversy.” 1 See §§ 77 et seq., post. 2 Foster v. Starkey, 12 Cush. 324. 122 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. on his part, of a subsisting liability.1 It has been held that a new promise might be inferred from the fact of such payment, without other evidence ;? but the weight of modern authority is in favor of the rule that a jury is not bound to infer such a promise from the mere fact of payment, for “ proof of a pay- ment of part of a debt is, in legal effect, only evidence of an acknowledgment from which a promise to pay the remainder of the debt may properly be inferred; ... and if the pay- ment is made under circumstances which rebut the infer- ence of a new promise to pay the residue of the debt, it is no answer to the statute of limitations.”? And the principle is laid down by Parke, B., that a part payment, in order to be sufficient to take a case out of the statute, must appear to have been made on account of a sum admitted to be due, accompanied by a promise to pay the remainder.* And it is 1 The court cannot, as an inference of law, imply a promise from the mere fact of part payment. The question must be left to the jury. White v. Jordan, 27 Me. 370. 2 See Whitcomb v. Whiting, 2 Doug. 652; Jackson v. Fairbank, 2 H. Bl. 340; Brandram v. Wharton, 1 B. & Ald. 458; Rucker v. Frazier, 4 Strobh. 93; Ayer v, Hawkins, 19 Vt. 26; Carshore v. Huyck, 6 Barb. 583; Smith v. Simms, 9 Ga. 418. 8 Roscoe v. Hale, 7 Gray, 274. In Massachusetts, under Pub. Sts. c. 197, it is held that if a part payment bas been made on an attested promissory note, the original payee may maintain an action on the note at any time within twenty years after the date of such payment. Gilbert v. Collins, 124 Mass. 174. And see to the same effect, Estes v, Blake, 30 Me. 264. In Nevada, part payment does not revive the debt. Taylor v. Hendrie, 8 Nev. 243. And in Ohio, an acknowledgment, part payment, or promise made after the debt is once barred, will not revive it. Hill v. Henry, 17 Ohio, 9. The provision in the Civil Code of Oregon, § 25, that in case of a part payment, the statute runs from the time of the payment, refers only to payments made before the statute has run against them. Creighton v. Vincent, 10 Ore. 56. 4 Tippetts v. Heane, 1 Cr. M. & R. 252, s. c. 4 Tyrw. 772; Davies v. Edwards, 15 Jur. 1044. The rule thus laid down by Parke, B., appears to have been founded on a consideration of the statute of limitations of 9 Geo. IV. c. 14, which made a promise in writing requisite to take a case out of the operation of the statute, but also provided that nothing con- tained in the statute ‘‘ shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever.” In Tippetts v. Heane, supra, the question was whether the fact that a sum of money had been paid to the plaintiff, on what account did not appear, SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 123 safe, at least, to say that, when the payment is accompanied by acts or declarations of the debtor, or by surrounding cir- cumstances, which show that the payment was not intended to revive the debt, then the jury will not be justified in in- ferring a new promise! Thus part payment accompanied by a denial that more is due will not take a case out of the stat- ute2 So itis held that payment of a judgment recovered on a suit for interest due on a note, is not a payment from which a promise to pay the principal can be inferred.® was sufficient to take the case out of the statute of limitations. Parke, B., said, ‘‘ In order to take a case out of the statute of limitations by a part payment, it must appear, in the first place, that the payment was made on account of the debt. Secondly, it must appear that it was made on account of the debt for which the action is brought. But the case must go fur- ther; for it is necessary, in the third place, to show that the payment was made as part payment of a greater debt, because the principle upon which a part payment takes a case out of the statute is that it admits a greater debt to be due at the time of the part payment. Unless it amounts to an admission that more is due, it cannot operate as an ad- mission of any still existing debt.’? The same rule was laid down by Lord Abinger in Waugh v. Cope, 6 M. & W. 824, and afterwards in Wainman v. Kynman, 1 Exch. 118, where it was held that a part pay- ment of a debt would not take a case out of the statute of limitations, unless there were also a promise in writing to pay the remainder. In Davies v. Edwards, supra, Parke, B., said: ‘+ The subject was not so much considered at the time when Jackson v. Fairbank [2 H. Bl. 340] and the subsequent case in the Queen’s Bench of Brandram v. Wharton [1 B. & Ald. 458] were decided as it has been since. It has more recently under- gone much consideration; and the principle has been laid. down in this court that a part payment, in order to be sufficient to take a case out of the statute, must be made on account of a sum admitted to be due, accom- panied by a promise to pay the remainder.”’ See to the same effect, Smith v. Westmoreland, 12 S. & M. 668; Davidson v. Harrisson, 33 Miss. 41. , 1 Part payment is only prima facie evidence of a new promise, and may be rebutted by other evidence, and by the circumstances under which it is made. Roscoe v. Hale, 7 Gray, 274; Stoddard v. Doane, id. 387; State Bank v. Wooddy, 5 Eng. (Ark.) 638; Arnold v. Downing, 11 Barb. 554; Jewett v. Petit, 4 Mich. 508; Aldrich v. Morse, 28 Vt. 642. 3 United States v. Wilder, 138 Wall. 254. 8 Morgan v. Rowlands, L. R. 7 Q. B. 493. It is held that part payment after action brought will not take a debt out of the statute. Bateman v. Pindale, 2 Gale & D. 790. But see, contra, Love v. Hackett, 6 Ga. 486. 124 NEW PROMISES AND ACKNOWLEDGMENTS. (CHAP. II. § 78. As to the Time of the Part Payment.— The authorities are not agreed as to the effect of a part payment made upon the debt after the period of limitation has elapsed. In a lead- ing case in Massachusetts, Shaw, C. J., said: “ The general rule as I now consider it settled is that, to avoid the operation of the statute, it must be shown that the defendant promised within six years next before the commencement of the suit, and if it appear that more than six years have elapsed since the making of the original promise, or since the cause of action thereon accrued, it must appear that the defendant has made a new promise to pay within the six years.”! Other cases seem to imply that there is nothing in the distinction, and still others hold that part payment-takes the case out of the operation of the statute whether made before or after the ex- piration of time limited thereby; and that the same proof is required in order to revive a debt once barred, whether the promise, acknowledgment, or payment was made before or after the statute took effect.* 1 Sigourney v. Drury, 14 Pick. 387. And see also Van Keuren ». Parmelee, 2 N. Y. 523; Carshore v. Huyck, 6 Barb. 5838; Essylstyn v. Weeks, 12 N. Y. 635; Davidson v. Morris, 5 S. & M. 564; Peyton v. Minor, 11 id. 148; Deloach v. Turner, 7 Rich. (S. C.) 148; Brewster v. Hardeman, Dudley (Ga.) 188; Deshler v. Cabiness, 10 Ala. 959; Mason v. Howell, 14 Ark. 199; Briscoe v. Anketell, 28 Miss. 361; Shackleford v. Douglass, 31 id. 95; Levistones v. Marigny, 138 La. Ann. 353. ° Fryeburg Pars. Fund. Trs. v. Osgood, 21 Me. 176; Carlton v. Lud- low Woollen Mill, 1 Vt. 496; Wheelock v. Doolittle, 18 id. 440; Yaw v. Kerr, 47 Pa, St. 333; Walton v. Robinson, 5 Ired. 341; Hunter v. Starkes, 8 Humph. (Tenn.) 656; Coles v. Kelsey, 2 Tex. 501. 3 Engmann v. Immel, 59 Wis. 249; Minniece v. Jeter, 65 Ala. 222. * Malone v. Seabright, 8 Lea (Tenn.), 91. In Farley v. Kustenbader, 3 Pa. St. 418, it is made a question whether a new promise, before the statute has run, is supported by a sufficient consideration, and Case v. Cushman, 1 Pa. St. 246, was cited as an authority. But in Hazelbaker v. Reeves, 9 Pa. St. 258, Case v. Cushman was overruled, and it was held that a new promise before the statute has run is supported by a sufficient consideration. In Ohio the statute provides that when any part of the principal or interest shall have been paid within the time limited, action may be commenced within the time limited after such payment. See Hill v. Henry, 17 Ohio, 9. Whether part payment or an acknowledgment will take a bond out of the statute, the authorities do not agree. It was held that where the obligor in a bond, with full knowledge of his legal rights, SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 125 § 79. Part Payment by the Debtor's Representative, how far effectual. — The principle that circumstances may control the effect of the payment is applied to cases in which the part payment is made by a party who represents, or assumes to represent, the debtor. Thus a payment on a note made by the surety thereon, with the knowledge and tacit assent of the principal, may bind the principal as by a new promise,! and so if the payment is made by an agent without authority, if his act is afterwards ratified by the principal.2 But if not so ratified the payment is ineffectual. The authority of an agent to make a payment effectual to bind his principal must be clearly established. Where one of three makers of a joint and several note, who, in fact, signed it as surety, being ap- plied to for payment, requested the payee to tell the principal that he (the principal) must make a payment, and the payee conveyed the message, and the principal made the payment ; it was held that these facts did not show an authority in the principal to make an effectual payment to bind the surety ; and although the fact of payment was communicated to the surety, admitted his liability after the bond was barred, the admission revived the obligation. Tillet v. Commonwealth, 9 B. Mon. 438. So the pay- ment of interest on a bond by one of the sureties before the statute of limitations attaches takes the debt out of the operation of the statute as to all. (McBride, J., dissentiente.) Craig v. Callaway County Court, 12 Miss. 94; Hartman v. Sharp, 51 Mo. 29. See also Armistead v. Brooke, 18 Ark. 521. But in Alabama it has been held that a verbal acknowl- edgment by the obligor will not prevent the statute from running against a bond, nor revive the remedy after the statute has become a bar. Craw- ford v. Childress, 1 Ala. (N. s.) 482. 1 Whipple v. Stevens, 22 N. H. 219. So payment of fatebet upon a debt does not prevent a surety from availing himself of the benefit of the statute, if it does not appear that such payment was made by the surety himself or by one authorized to pay for him. ‘Gould v. Cayuga County Bank, 86 N. Y. 75. But a payment by the principal debtor which takes a note out of the statute, has the same effect with respect to a surety who sees it made without objection. Glick v. Crist, 837 Ohio St. 388. See McMullen v. Rafferty, 24 Hun, 363, as to the application of this rule to indorsers. It is held that part payment by a surety after the action is barred does not revive his liability for the other part. Emmons ». Over- ton, 18 B. Mon. 643. But see cases cited in § 77, ante. 2 Utica Bank v. Ballou, 49 N. Y. 155. ® Harper v. Fairley, 53 N. Y. 442. 126 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. who said it was “all right,” this was nota ratification. So the indorsement on a note of a payment made by the payee with- out the knowledge of the maker, is not equivalent to an ac- knowledgment by the latter. Parke, B., holding that a part payment would not, under the St. 9 Geo. IV. c. 14, take a case out of the statute, unless there was also a promise in writing to pay the residue of the debt,? said: “ If this doctrine is applicable to a payment made by the party himself, it is impossible to contend that a payment by the assignees of a bankrupt or insolvent involves a promise by him to pay the remainder of the debt, so as to enable the creditor to sue him for it after the expiration of the six years. If payment of this dividend would not have the effect of taking the case out of the statute, supposing it had been made by the party himself, a fortiori it cannot have that effect when not made by the party or his agent, but by a third party, namely, an assignee appointed to distribute his effects. There has, therefore, been no part payment in this case sufficient to take it out of the statute; for the only one proved is one by a third party to the promissory note, under circumstances which show it is not binding either as against himself or the other makers.” * § 80. By giving new Note or Security: Payment of Inter- est.—If the debtor gives a negotiable promissory note,> or security,® for a part or the whole of the debt, within the 1 Littlefield v. Littlefield, 91 N. Y. 203. 2 Areaux v. Mayeux, 23 La. Ann. 172; Creighton v. Vincent, 10 Ore. 56; Royston uv. May, 71 Ala. 398. 8 See § 77, ante. It was also held in Willis v. Newham, 3 Y. & J. 518, that a verbal acknowledgment of a payment of part of a debt within six years is not sufficient, within the 9 Geo. IV. c. 14, to take the case out of the statute of limitations; but this case was overruled in Cleave v. Jones, 6 Exch. 578. 4 Tippetts v. Heane, 1 Cr. M. & R. 252. And see Bradfield v. Tupper, 7 Eng. L, & E. 541, editor’s note; Roscoe v. Hale, 7 Gray, 274; Stoddard r. Doane, id. 387; Richardson ». Thomas, 13 id. 881. But in Letson ». Kenyon, 31 Kan. 301, it was held that an assignee for creditors of a bankrupt may, by part payment, take a debt due from the assignor out of the statute. 5 Jisley v. Jewett, 2 Met. 168. ® Whitney v. Bigelow, 4 Pick. 110; Manderston v. Robertson, 4 Man. BEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 127 time limited, this is equivalent ‘to a new promise, and will take the case out of the statute. So, if he pays interest,! and. it makes no difference that the interest paid within the time limited had accrued before,? the giving of a note to secure the payment of interest accrued on another note previously given is held to be a sufficient acknowledgment of the existence of a continued indebtedness upon the latter note? So a & Ry. 410; Balch v. Onion, 4 Cush. 559. See § 87, post. An undeliy- ered mortgage, though executed, acknowledged, and recorded, is no se- curity. Merriam v. Leonard, 6 Cush. 151. 1 Wyatt v. Hodson, 8 Bing. 809; Sigourney v. Drury, 14 Pick. 387. In this case, it was held by Shaw, C. J., upon consideration of the original statute of limitations in Massachusetts, which was in substance a transcript of the statute of 21 James I., that the payment of interest by the principal promisor in a joint and several promissory note, annually, from the time when the note was given, was sufficient to take the case out of the statute as against the surety. But under Rev. Sts. c. 120, §§ 14, 17 (Gen. Sts. c. 155, § 14; Pub. Sts. c. 197, § 17); providing that joint contractors shall not be chargeable by reason of an acknowledgment or part payment made by one of them, the contrary rule is held. See Faulkner v. Bailey, 123 Mass. 588. Where there was originally no ex- press promise to pay interest, though a tender of the debt in court takes the debt out of the statute, a promise to pay interest will not be inferred from a tender of the principal. Collyer v. Willock, 4 Bing. 313. 2 Beasley v. Greenslade, 2 Tyrw. 121; Fryeburg Pars. Fund Trs. v. Osgood, 21 Me. 176; Bradfield v. Tupper, 7 Eng. L. & HE. 541; Conwell v. Buchanan, 7 Blackf. (Ind.) 5387; Sanford v. Hayes, 19 Conn. 591; Wal- ton v. Robinson, 5 Ired. 341; Worthington v. Grimsditch, 15 L. J. (wv. 8.) Q. B. 52; s.c.10 Jur. 26; Baildon v. Walton, 1 Exch. 617; Barron v. Kennedy, 17 Cal. 574. 8 Sigourney v. Wetherell, 6 Met. 553; Wenman v. Mohawk Ins. Co., 13 Wend. 267. In Hollis v. Palmer, 2 Bing. N. C. 713, the plaintiff sued as executor upon a promissory note given to his testator, and averred in his declaration that the defendant had not paid the note to the testator in his lifetime, or to the plaintiff since the testator’s death, except “in- terest on the said note at the rate of £5 per cent from the day of the date of said note up to a certain day within six years next before the com- mencement of this suit,’’ etc.; and that the interest so paid was paid to the testator in his lifetime. The argument in behalf of the plaintiff was, that the defendant’s plea of the statute of limitations admitted interest to be due, which the plaintiff might recover independent of the principal, and that the plea did not answer the whole declaration, The court, how- ever, held that the claim for principal was the only cause of action set forth in the declaration, and that the interest, as an accessory to the prin- 128 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. Il. debtor’s account stated with the creditor, in which credit is given for interest, is the same in its effect as if the money had been paid! It was held that the passing of an ordinance by a city, which provided for the payment of an attorney who had been employed by the city, interrupted the running of prescription against the attorney’s claim.? § 81. Rule as to the Application of Payments. — The gen- eral rule as to the application of payments is that the debtor may, if he choose in the first instance, appropriate the payment, but if he omit to do this, the creditor may make the appropriation, and he may appropriate the payment to a debt barred by the statute; but such appropriation will not take the debt out of the operation of the statute? But where there are several ascertained and admitted debts, none of which are barred, the payment when applied by the cred- itor has the same effect upon the debt to which it is applied as it would have if it had been made by the debtor ex- pressly on account of such debt. And it is said that when there are two debts and a general payment, there is, gener- cipal, fails together with the principal, when the latter is barred ; that the payments of interest set forth are only evidence of a cause of action (see § 77, ante), and so that the plea answered the only cause of action set forth in the declaration. 1 Smith v. Ludlow, 6 Johns. 267. The provision of the St. 9 Geo. IV. c. 14 (Lord Tenterden’s Act), referred to by Parke, B., in Tippetts v. Heane (see § 79), is substantially followed in the Public Sts. of Mas- sachusetts, c. 197, § 15. Under this section it is held that an account stated, which is not supported by evidence of some writing signed by the party to be charged, will not prevent the running of the statute against previously existing liabilities included therein. Chace v. Trafford, 116 Mass. 529. 2 McConnell v. New Orleans, 35 La. Ann. 278, and see State v. Board of Liquidation, id. 753. 3 Pond v. Williams, 1 Gray, 630; Ramsay v. Warner, 97 Mass. 8; Winchester v. Sibley, 132 id. 273; Lowery v. Gear, 82 Ill. 382. 4 Ramsay v. Warner, supra. So it is held that if there are three notes, two of which are barred, and a sum of money be paid on account of in- terest generally, but less than the amount of interest due on the note not barred, the payment will prevent the running of the statute on the latter note. Nash v. Hodgson, 31 Eng. L. & E. 555. SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 129 ally, evidence for a jury of a payment on account of both. The fact that the application is not made by the creditor until after suit brought, is not material.2 On an application of the same principle, it is held that when an account is presented and examined, part payment on account generally, by the debtor, without designating any particular items, or excepting to any, saves the whole account from the operation of the statute.2 So if the debt is payable by instalments, and all are duet Where a third person was liable to the defend- ants for the payment of a portion of such an account, and one of the defendants, together with the plaintiff and such third person, examined the plaintiff's account, and no objec- tion was made to any portion of it, and the items for which the third person was holden were selected and paid for, and credit was given by the plaintiff for the payment on account, this was held sufficient to take the case out of the statute. 1 Walker v. Butler, 6 El. & Bl. 506, So in Taylor v. Foster, 182 Mass. 30, it was held that the money received by the creditors should be applied to each of four promissory notes, and that the whole debt was taken out of the statute. But see Ayer v. Hawkins,19 Vt.26. In Burn v. Bolton, 2 C. B. 476, Tindal, C. J., said that, ‘if two admitted demands were due at the time of the part payment, so that it was doubtful to which demand the payment applied, such a payment would not take either de- mand out of the statute.’ And see Burr v. Burr, 26 Pa. St. 284; Armi- stead v. Brooke, 18 Ark. 521. 2 Mills v. Fowkes, 5 Bing. N. C. 455. § Dyer v. Walker, 54 Me. 18; Peck v. New York, &c., Steamship Co., 5 Bosw. 226. 4 Nesom v. D’Armoud, 13 La. Ann, 294. : | 5 Sanderson v. Milton Stage Co., 18 Vt. 107. Under the statute 21 James I, c. 16, it was held that one joint maker of a promissory note would be bound by the acknowledgment of the other, although made without his knowledge or subsequent assent. (But in England the rule is now otherwise; see § 57, ante.) In such a case it was held that, in order to take it out of the statute, it was not sufficient to show a payment by a joint maker of the note within six years, so as to throw the burden of proof upon the defendant to show that the payment was not made on account of the note. But the question was as to the application of the payment, and it was contended that the payment must be appropriated to the claim in question, unless it could be shown by the defendant that some other account existed between the parties. Lord Ellenborough said: “There would be no such thing as the statute of limitations, if this doc- 9 180 NEW PROMISES AND ACKNOWLEDGMENTS. ([CHAP. II. § 82. Indorsements as Evidence of Part Payment: By Payee or Obligee. — The ordinary method of proving a part payment on a promissory note, or bond, is by showing an indorsement of such payment made thereon! But such.an indorsement must be made in good faith and with the privity of the obligee. In some of the States the statute provides that the indorsement, in order to be equivalent to a new promise, must not be written or made by orin behalf of the party to whom the payment is made.? But the indorsement of payment on a promissory note, written by the holder of the note with the express assent and at the request of the promisor, is sufficient proof of such payment to prevent the operation of the statute of limitations.2 The holder cannot give credit on the note for services rendered by the maker, and thus take the case out of the statute An acknowledgment of payment in writ- ing, though unsigned, is held sufficient evidence prima facie to take the debt out of the statute.6 But such unsigned in- dorsement by the debtor of a payment of part of a promis- sory note will not prevent the operation of the statute, if no money or valuable consideration passes between the parties, trine were to prevail; an acknowledgment, to bind a partner, ought to be clear and distinct.’? Holme v. Green, 1 Stark. 488. 1 Searle v. Barrington, 2 Strange, 826; Turner v. Crisp, id. 827; Glynn v. Bank of England, 2 Ves. Sen. 43; Gale ». Capron, 1 Ad. & El. 102, and 28 Eng. Com. Law, 46; Ilsley v. Jewett, 2 Met. 168; Sigourney v. Drury, 14 Pick. 387; Howe v. Thompson, 11 Me. 152; Whitney v. Bige- low, 4 Pick. 110; Dowling v. Ford, 1 M. & W. 325; Hunt v. Bridgham, 2 Pick. 581; Haven v. Hathaway, 20 Me. 345; Hathaway v. Haskell, 9 Pick. 42; Roseboom v. Billington, 17 Johns. 182; Read v. Hurd, 7 Wend. 408; Connelly v. Pierson, 4 Gilm. (Ill.) 108; Alston v. State Bank, 4 Eng. (Ark.) 457; Chandler v. Lawrence, 3 Mich. 261. 2 Pub. Sts. Mass. c. 197, § 16. See Williams v. Burbank, 8 Met. 352. 8 Sibley v. Phelps, 6 Cush. 172; and see also Smith v. Simms, 9 Ga. 418; Hawley v. Griswold, 42 Barb. 18; Sornberger v. Lee, 14 Neb. 193. * Phillips v. Mahan, 52 Mo. 197; Kyger v. Ryley, 2 Neb. 20. 5 Blanchard v. Blanchard, 122 Mass. 558; Cleave v. Jones, 6 Exch. 573, where Willis v. Newham, 3 Younge & J. 518, is overruled. And so is an oral admission. Williams v. Gridley, 9 Met. 485; Sibley v. Lum- bert, 30 Me. 353, and see § 85, post. But in Louisiana, it has been held, that the entry of a check on the books of the drawer as unpaid does not interrupt prescription running in his favor. Harman v. Claiborne, 1 La. Ann, 342. SEC. V.] | ACKNOWLEDGMENT BY PART PAYMENT. 131 even if, at the time of the indorsement, they orally agreed that it should be deemed a payment.! In debt on a bond dated in 1785, it appeared there were several indorsements on the bond, acknowledging the receipt of interest down to 1793, which indorsements were in the handwriting of the defendant, and were admitted to be evidence of the bond remaining unsatisfied at the date of the last indorsement. The presumption from lapse of time being thus rebutted, the plaintiff, for the purpose of meeting certain evidence of pay- ment in 1794, offered in evidence other indorsements down to 1795, acknowledging the receipt of interest and part of the principal. These latter indorsements not being in the hand- writing of the defendant, Lord Ellenborough thought it neces- sary to prove that they were on the bond at, or recently after, the times when they bore date, since, if such indorsements were admissible whenever written, this would be allowing the obligee to manufacture evidence for himself, to contradict the fact of payment.? And it is generally held, for the reasons stated, that the mere indorsement of a payment upon a prom- _issory note by the holder, after the expiration of the time limited by the statute, affords no legal evidence of such pay- ment. The doctrine is that an indorsement upon a note or bond, made by the payee or obligee without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party making the indorsement, unless it appear that it was made when its operation would be against the interest of the party making it; but that if evidence of its being made against interest were given, such evidence would be proper for the consideration of the jury.? 1 Blanchard v. Blanchard, supra. 2 Rose v. Bryant, 2 Campb. 321, See Beatty v. Clement, 12 La. Ann. 82; Maskell v. Pooley, id. 661; Briggs v. Wilson, 39 Eng. L. & E. 62. 3 Roseboom v. Billington, 17 Johns. 182; Read v. Hurd,7 Wend. 408; Clapp v. Ingersol, 11 Me. 83; Gibson v. Peebles, 2 M’Cord, 418; M’Ghee v. Green, 7 Port. (Ala.) 587; Watson v. Dale, 1 id. 247; Whitney v. Bige- low, 4 Pick. 110; Bailey v. Crane, 21 id. 823; Butcher v. Hixton, 4 Leigh, 519; Wilcox v. Pearman, 9 id. 144; Brown v. Hutchings, 14 Ark. 83. Re- lationship does not give a wife authority to make a payment for the hus- band, in the absence of evidence that he authorized it. Butler v. Price, 115 Mass. 578. In Read v. Hurd, supra, one who was indebted to another: 182 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. § 83. Application of the Rule to Promissory Notes. — Thus in an action brought by an administrator on a promissory note more than six years after the date of the note, an in- dorsement in the handwriting of the intestate of a payment purporting to be made more than two years before the statute would attach, and six months prior to his death, was held to be evidence of a new promise, though there was no other proof of the time when the indorsement was actually made; since, at the time of the indorsement, the intestate could not have been under temptation to make it for the sake of fur- nishing evidence in his own favor, as the statute would not have attached for more than two years; and to furnish proof that he had received part of the contents of the note would be clearly against his interest! So, it has been held that an indorsement on a note of a payment on account, proved to have been made within six years from the date of the note and time of suit brought, was sufficient to prevent the opera- tion of the statute? In one case, the indorsement of part payment was made by the defendant himself, so that there was no question as to its being so far a sufficient acknowledgment of indebtedness to remove the presumption of previous pay- ment. But the date of the indorsement was not entered by the defendant, and therefore it became material to prove when such entry was made. The adding of a date on the back was directed to pay the amount owing by him to a creditor of the person to whom the money was due, without a specification of the account to which it should be applied; and the money was received and indorsed on a note in part payment of the same, which indorsement was subsequently relied on to take the note out of the operation of the statute. It was held that the evidence was not sufficient, as a matter of law, to prove an acknowledgment by the maker within six years; and the court below having expressed an opinion that it was sufficient, and not having submit- ted it as a question of fact for the jury, the judgment was reversed. 1 Coffin r. Bucknam, 12 Me. 471. To the point that entries made by persons deceased, against interest, are admissible in evidence, the court cite Warren v. Granville, 2 Strange, 1129; Higham v. Ridgway, 10 East, 109; Reece v. Robson, 15 id. 82. In the last named case, Lord Ellenborough said: ‘¢The ground upon which this evidence has been received is, that there is a total absence of interest in the persons making the entries to pervert the fact, and at the same time a competency in them to know it.” 2 Adams v. Seitzinger, 1 Watts & S. 243; Haven v. Hathaway, 20 Me, 345. SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 183 of a note is not an alteration of the instrument, and in no wise affects its validity. § 84. Part Payments made on Sunday.— Part payment, and an indorsement thereof, made on Sunday, are not competent evidence of a new promise to remove the bar of the statute. For the fact of payment is a link in the chain of evidence necessary to sustain the plaintifi’s action. The statute ordi- narily prohibits the doing of any manner of labor, business, or work on the Lord’s day, except works of necessity and charity. This exception cannot be taken to include the pay- ment of a note, and when any act essential to constitute or complete the right to recover is in violation of law, the plain- tiff cannot invoke the assistance of the courts to defeat the will of the legislature, and the court will not assist either party to avoid or take advantage of the illegal act, but will leave both parties as it finds them.? § 85. Fact of Part Payment, how proved generally.— The fact of part payment may be proved by the oral admission of the debtor, or by other competent evidence, as well as by an indorsement of payment, or other writing, if it be made to appear that such admission was made in reference to the demand in suit.2 Where it merely appeared that the defend- ant paid £10 to the plaintiff within six years, this was held by Parke, B., not to be sufficient evidence, under the circum- stances, to go to the jury to prove payment on account of the particular debt sued for: “For, to take the case out of: the statute, it must be shown that the part payment was made on account of a larger debt, the principle on which it takes a case out of the statute being that it admits a greater debt to 1 Howe v. Thompson, 11 Me. 152. 2 Clapp v. Hale, 112 Mass. 868; Whitcher v. McConnell, 59 N. H. 470; Dennis v. Sharman, 31 Ga. 607. 8 Read v. Hurd, 7 Wend. 408. A statutory provision that the indorse- ment of a credit upon a note shall not be deemed sufficient proof that a payment was made, does not lessen the effect of a payment proved by other means. Meyer v. Binkleman, 5 Col. 262; Bailey v. Danforth, 53 Vt. 504. 134 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. be due. That is not necessarily established by the bare evi- dence that £10 was paid to the plaintiff by a third person on account of the defendant. Next, it must be shown to have been a payment in part discharge of the particular debt sued for, but there was here no proof of the application of the £10 to such a purpose. It was said, as there was no evidence of any other debt due from the defendant to the plaintiff, the jury might be warranted in concluding the £10 to have been paid on account of this debt; but it did appear that it was a payment on account, and not of a balance, nor was any acknowledgment made at the time of such payment that a greater sum was due. Then, if from what passed at the time it could be affirmed to have been a part payment of a pre- existing larger debt, it would take the case out of the stat- ute; but, in the absence of such proof, a new trial must be granted.”! So where it did not appear that the defendant, in making the payment, had in contemplation the items against which the statute had run, it was held that the court could not so apply the payment as to bring the whole account out of the statute.2 Payments appearing to be made, not upon the general account, but to be applied to specific items thereof, do not avoid the bar of the statute.2 Where credits indorsed on a bond were relied on to take the case out of the statute, it was held that the plaintiff must establish the fact that the indorsements were made at their apparent dates, and that an admission that they were in the handwriting of the obligee was not sufficient to prove this. Generally, a pay- ment of part of a debt, accompanied by acts or declarations showing that the debtor does not intend to pay more, will not revive the right of action as to the unpaid balance of the debt, if this is already barred, nor arrest the running of the statute if it is not barred. 1 Tippetts v. Heane, 4 Tyrw. 772. 2 Beltzhoover v, Yewell, 11 Gill & J. 212; and see Waters v. Tomp- kins, 2 Cr. M. & R. 723; Vaughn v. Hankinson, 35 N. J. L. 79; § 54, note, ante. 8 Harris v. Howard, 56 Vt. 695. 4 Grant v. Burgwyn, 84 N. C. 560. § Hale v. Morse, 49 Conn. 481; and see Brown v. Latham, 58 N. H. 30. SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 185 § 86. To Person other than the Creditor, Effect of. —It is held that, under the statute of 21 James I., c. 16, it is im- material to whom the part payment is made, but that if it be made to an agent, or even to a person not authorized to re- ceive it, but appearing to be so authorized, it amounts to an acknowledgment. Thus, it was observed by Tindal, C. J.: “In this case the statute of limitations has been pleaded to an action on a promissory note, and the plaintiff has proved pay- ment of principal and interest within six years; not indeed to one who had a rightful title to receive it, but who, having letters of administration, would appear at least to stand in that situation. In the mind of the party paying, such a pay- ment must have been a direct acknowledgment and admission of the debt, and is the same thing, in effect, as if he had written in a letter to a third person that he still owed the sum in question.”1 The same rule is obviously to be applied to an acknowledgment in any form. Thus it has been held that it is not necessary that the acknowledgment should be made to the creditor himself, or to his executor, for if made toa stranger in the absence of the creditor or his executor, it will defeat the operation of the statute, as raising an implied promise. Admission of indebtedness to and promise to pay the payee of a note have been deemed sufficient to enable the indorsee to avoid the statute. But the rule clearly 1 Clark v. Hooper, 10 Bing. 480; s. c. 4 Moore & S. 353. See also Megginson v. Harper, 4 Tyrw. 94; Pease v. Hirst, 10 Barn. & C, 122. 2 Porter v. Hill, 4 Me. 41; Whitney v. Bigelow, 4 Pick. 110; Soulden v. Van Rensselaer, 9 Wend. 293; St. John v. Garrow, 4 Port. (Ala.) 223; Bloodgood v. Bruen, 4 Sandf. 427; Carshore v. Huyck, 6 Barb. 583 ; Wat- kins v. Stevens, 4 id. 168; Phillips v. Peters, 21 id. 851; Newkirk »v. Campbell, 5 Harr. (Del.) 380; Collett v. Frazier, 3 Jones, Eq. (N. C.) 80; Palmer v. Butler, 36 Iowa, 576. But it is held that the admission must be made with intent to influence the action of the creditor. Wake- man v. Sherman, 9 N. Y. 85. 8 Frye v. Barker, 4 Pick. 382; Little v. Blunt, 9 id. 488; Dean », Hewett, 5 Wend. 257; Howe v. Thompson, 11 Me. 152; Bird v. Adams, 7 Ga. 505. And the indorser is a competent witness to prove the time when the payment was made, provided he has shielded himself from all liability by ordering the contents of the note to be paid ‘‘ without re- course,” or words equivalent. Rice v. Stearns, 3 Mass. 225; Howe ». Thompson, supra; Baskins v. Wilson, 6 Cowen, 471; Barretto v. Snow- 186 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. appears to be otherwise under Lord Tenterden’s Act, 9 Geo. IV. e. 141 § 87. Made otherwise than in Money.— If it be agreed that the creditor shall receive goods in reduction of his demand, the delivery of the goods operates as a partial payment.? But where chattels were placed in the hands of the payee of a note by the maker, at the date of the note, under an agree- ment to apply the proceeds to the payment of the note, it was held tliat such application, without notice to and assent by the debtor, would not constitute a payment from which a new promise might be inferred. If work is performed from time to time in payment of a debt, and the account is stated by the parties, the payment is to be considered as made at the time of the statement, and not at the several periods at which the work was done.t Where goods are to be sold, and the pro- ceeds appropriated in part extinguishment of the debt, the sale must be made and credit given for the proceeds within a reasonable time. Where the maker of a promissory note delivered goods to the holder to be sold, the proceeds to be appropriated towards the payment of the note; it was held that if such sale was made, and the proceeds indorsed upon den, 5 Wend. 181; and see Dowling v. Ford, 1 M. & W. 329. When notes secured by mortgage have become barred by the statute, the cred- itors of the mortgagor may claim the benefit; nor, it is held, can any rights acquired by the creditors by the running of the statute, be affected by a subsequent acknowledgment of the debt. Larthet v. Hogan, 1 La, Ann. 330. 1 Grenfell v. Girdleston, 2 Younge & C. 662 ; Goate v. Goate, 37 Eng. L. & E. 486; and see § 94, post, note; and the contrary rule appears to be held in Pennsylvania, McKinny v. Snyder, 78 Pa. St.497; North Caro- lina, Thompson v. Gilreath, 8 Jones, 493; and in Nevada, Taylor v. Hendrie, 8 Nev. 242. See also Keener v. Crull, 19 Ill. 189. 2 Hooper v. Stevens, 4 Ad. & El. 71; Hart v. Nash, 2 Cr. M. & R. 337; 8. c. Tyrw. 955; Sibley v. Lumbert, 30 Me. 253; Butts v. Perkins, 41 Barb. 509. ; 3 Brown v. Latham, 58 N. H. 30. But it was held that the receipt and indorsement on a promissory note, by the holder, of money realized from a collateral left with the holder by the maker, for that purpose, would remove the bar of the statute. Sornberger v. Lee, 14 Neb. 193. * Borden v. Peay, 20 Ark. 293. SEC. V.] ACKNOWLEDGMENT BY PART PAYMENT. 137 the note, within a reasonable time this was to be considered as a payment made by the maker’s order. But if the holder, without any assent on the part of the maker, or any notice to him, makes the sale and indorsement after a reasonable time has elapsed, this will not take the note out of the statute.) So, in an action upon a note payable more than six years before the commencement of the suit, it was held, the defendant having delivered another note to the plaintiff “to collect the same and apply the proceeds to the payment of the note in suit,” and the plaintiff having accepted it, that the plaintiff was bound to comply with these directions; and that, as soon as he collected the money upon it, he was bound to consider it a payment of so much of the note in suit; and that proof of a payment on the collateral note would operate as proof of payment of the same sum on the note in suit, But in such case, if the plaintiff has not used reasonable diligence to collect the collateral note and the payments have been made later than they should have been made, the pay- ments cannot be considered as made by order of the defend- ant.? So, a bill of exchange, delivered on account of a larger sum due with interest for the purpose of paying part, will take the remainder out of the statute, though the bill at its maturity be dishonored.2 But if the bill is delivered as col- lateral, the proceeds to be applied in payment, the receipt of a dividend on the note takes it out of the operation of the statute from the time of the receipt. Delivery of a check is not a payment of money until the check is paid.6 The main- tenance of a child was held equivalent to a part payment of a note, the amount due for such maintenance having been indorsed by the mother on the note in lieu of interest.6 But it is held that the deposit by the maker of a promissory note, with the assent of sureties, of cotton, with the agreement that its proceeds when sold should be applied in payment of 1 Porter v. Blood, 5 Pick. 54. 2 Haven v. Hathaway, 20 Me. 345. ® Turney v. Dodwell, 24 Eng. L. & E. 92, See § 77, ante. 4 Whipple v. Blackington, 97 Mass. 476. 5 Garden v. Bruce, L. R. 3 C. P. 300. 6 Bodger v. Arch, 28 Eng. L. & E. 464. 138 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. the note, did not withdraw the note from the operation of the statute of limitations, although the cotton was sold and the proceeds applied in payment, after the maturity of the note and within six years before the commencement of suit.! SECTION VI. OF WRITTEN ACKNOWLEDGMENTS. § 88. Required by the Statute in England. — It was provided by the Act of 9 Geo. IV., c. 14, commonly called from its author, “Lord Tenterden’s Act,”? “that, in actions of debt or upon the case, grounded upon any simple contract, no ac- knowledgment or promise by words only shall be deemed suffi- 1 Lyon v. State Bank, 12 Ala. 508. 2 See Appendix. The principal provisions of Lord Tenterden’s Act have very generally been adopted in the legislation of the American states. But in Massachusetts, an important modification of the original act appears. Under the received construction of Lord Tenterden’s Act, as will be seen (§ 89), one joint contractor, though he cannot prevent another from taking advantage of the statute of limitations by any other acknowledgment, may do so by a part payment of principal or in- terest. The Massachusetts statute expressly provides that if there be two or more joint contractors no one of them shall be chargeable by reason of any payment made by any other or others of them. Pub. Sts. c. 197, § 17. Similar provisions occur in the statutes of Vermont and Michigan, and perhaps other states. Under the above-mentioned statute it was held in Massachusetts, where a promissory note, made and deliv- ered as a settlement of a demand barred by the statute, was given up to the maker by the payee for the purpose of restoring matters between the parties to the state they were in before the note was given, that the act of making and delivering such note was not competent evidence to take the original demand out of the operation of the statute. The court said that there was no sufficient evidence of any acknowledgment or promise in writing, signed by the party to be charged thereby, to avoid the effect of the statute. Sumner v. Sumner, 1 Met. 1. But it seems to be other- wise if the note be given up merely with the intention of leaving open the question of the amount due to the payee. Id. In Maine, it is pro- vided that a promise or acknowledgment in writing must be express, in order to be evidence of a new contract. In Wisconsin, no promise in writing is required. SEC. VI.] WRITTEN ACKNOWLEDGMENTS. 189 cient evidence of a new or continuing contract, whereby to take any case out of the said enactments [the statute of 21 James I., c. 16, and the Irish Act of Limitations], or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.” The object of this act was the prevention of fraud and perjury in proving new acknowledgments or promises, by rendering it necessary to procure that in writing, for which purpose words were previously sufficient.1 The statute did not intend to change the legal construction of acknowledg- ments or promises made by the defendants, but only to require a different mode of proof. “To inquire, . . . whether, in a given case, the written document amounts to a written ac- knowledgment or promise, is no other inquiry than whether the same words, if proved before the statute to have been 1 See remarks of Lord Tenterden in Dickenson v. Hatfield, 5 C. & P. 46. Mr. Brougham, in his speech on legal reform, delivered in the House of Commons on February 7, 1828, proposed ‘‘ to prop up the statute of limitations by the statute of frauds,’? and to provide that no promise should take the case out of the statute unless made in writing, and thus put an end to absurd and contradictory decisions. Lord Tenterden’s Act, which was passed in the May following, was entitled, ‘An act for rendering a written memorandum necessary to the validity of certain promises and engagements,’’? and took effect on the first of January, 1829. Thompson, J., in Moore v. Bank of Columbia, 6 Peters, 86, said: ‘Tt shows, in a very striking point of view, the sense of the English legislature of the very great mischief which has resulted from vague and loose declarations, in a great manner to set aside and make void the statute of limitations.” ‘‘ Although,”’ says Shaw, C. J., ‘it does not attempt to define what species or form of acknowledgment shall be suffi- cient to found a new promise, yet, when parties are compelled to rely upon written acknowledgments, framed for the express purpose of renew- ing and continuing a promise which has expired, or is about expiring, such acknowledgment may reasonably be expected to be definite in its reference to the debt, security, or promise, intended to be continued in force, and so precise and explicit in its terms of acknowledgment as to dispel much of the obscurity which has surrounded other cases, arising upon loose, indefinite, and unguarded verbal admissions.’? Sigourney v. Drury, 14 Pick. 887. The act illustrates and confirms the policy which had long been pursued by the American courts, in admitting cautiously loose verbal declarations to take a case out of the statute. 140 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. spoken by the defendant, would have had a similar operation and effect.”! How far the acknowledgment or promise in any case may be considered as admitting a debt to be due, or as amounting to a promise to pay it, is a question of law for the determination of the court; but extrinsic facts are for the jury. § 89. But Acknowledgments by Part Payment still effectual: Proof of. — Since Lord Tenterden’s Act provides merely that an acknowledgment by “ words only” shall not be re- ceived as evidence of a new promise to take the case out of the statute, it is generally held that part payment by the debtor may be still, under the act, evidence of a new promise.’ And it has been further held that evidence of a parol promise which, standing by itself, would have been inadmissible under the act, might be competent in connection with other evidence tending to prove part payment or an acknowledgment in writing. Thus, in an action by the payee against the maker of a promissory note, the plaintiff, to rebut a plea of the stat- ute, proved the fact of a payment on account of the note with- in six years, and further proved a parol admission by the party paying that he had made-such a payment. This admis- sion, it was held, was rightly received as evidence tending to corroborate the direct proof of the fact of payment.t So the fact that the debtor in insolvency inserted the creditor’s claim in his schedule of debts, was held competent evidence to be considered in connection with evidence tending to show a previous written acknowledgment: by the debtor, without de- 1 Per Tindal, C. J., in Haydon v. Williams, 7 Bing. 163. 2 Morrell v. Frith, 3 M. & W. 402; 8C. & P. 246; Snook v. Mears, 5 Price, 636, 3 See Van Keuren v. Parmelee, 2 N. Y. 523; Pease v. Hirst, 10 Barn. & C. 122; Isley v. Jewett, 2 Met. 168. In this case it was held that a negotiable note given by a debtor for part of a debt, being payment of such part, takes the debt out of the operation of the statute. The effect was the same as if the amount had been paid in bank-notes or coin. Though the note in question was not considered as a promise in writing to pay the whole debt, it was of itself de facto a payment of part, and so by force of the statute the case was taken out of its operation. 4 Bevan v. Gething, 3 Gale & D. 59. SEC. VI.] WRITTEN ACKNOWLEDGMENTS. 141 ciding the question whether the fact of such insertion was competent evidence of an acknowledgment, when taken alone.} § 90. Written Acknowledgments must be Signed: Signed by Agents. —In order to be effectual, the writing relied on must be signed by the party sought to be charged thereby, even although the paper be in his handwriting.? And so the ' signature of an agent, though acting under due authority, will not, under the strict construction of the statute, be sufficient to charge his principal. Thus where the debtor’s wife wrote a letter to the creditor, in her husband’s name and at his re- quest, proposing to pay the debt by instalments, it was held that the promise was not sufficient to take the case out of the statute, because the letter was not signed by the party charge- able. Tindal, C. J., observed that it appeared that the legis- lature well knew how to express the distinction between a signature by the party and a signature by his agent; and since the act “expressly mentions the signature of the party only, we think it a safer construction to adhere to the precise words of the statute, and that we should be legislating, not interpreting, if we extended its operation to writings signed, not by the party chargeable thereby, but by his agent.” So it is held that an acknowledgment signed by the debtor’s clerk will not take the case out of the statute.t It seems, however, that such signature may be so executed by an agent, under the principal’s immediate direction and supervision, as to be, in effect, the signature of the principal, especially when the principal is incapacitated by illness, or otherwise, from signing himself.5 1 Woodbridge v. Allen, 12 Met. 470. It has been elsewhere decided that such a fact, taken by itself, is incompetent as evidence of an ac- knowledgment to take a case out of the statute, and this rule is supported by the weight of authority. See § 45, ante. 2 Barley v. Ashton, 12 Ad. & El. 493. 8 Hyde v. Johnson, 2 Bing. N. C. 776. 4 Coverley, In re, 8 Scott, 147. See also Queen v. Justices of Kent, L. R. 8 Q. B. 307; Toms ». Cuming, 7 M. & G. 88; Swift v. Jewsbury, L. RB. 9 Q. B. 301. § Lessee of Dublin v. Judge, 11 Ir. L. R. 8 142 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. Il. § 91. Effect of Agent's Signature to prove Part Payment. — The question of the power of an agent signing for his prin- cipal to bind the principal has also arisen in the case of an acknowledgment relied on to prove a part payment. As the act provides that no indorsement of payment made by the creditor shall be effectual to take the case out of the statute, it follows that such an acknowledgment, like any other, must be signed by the party chargeable thereby, and the court held, that an acknowledgment’ by the agent would not revive the debt, unless such acknowledgment was signed by the debtor himself. “There are no words in the first section that would seem to authorize the signature of an agent as being sufficient to save the statute; and it is equally clear, that where the legislature intended that such should be the case, as in the eighth section in regard to executory contracts, it had no difficulty in pointing out the distinction, and expressly le- galizing contracts signed by principals or agents thereunto lawfully authorized.” 2 § 92. Essential Requisites of the Written Acknowledgment. — The acknowledgment, to be effectual, must make the debtor personally chargeable. Where the debtor wrote to his credi- tor: “There are certain accounts due me, get them if you can,” it was held that the debtor had not charged himself and that there was no effectual acknowledgment. So where the acknowledgment of the debt was clear, but the debtor, in the same paper, pointed out to the creditor a particular fund held by trustees for the debtor’s benefit, to which fund the creditor might look for payment, it was held that the debtor had not charged himself personally, since he had only referred to others by whom the debt might be paid. Where the maker of a note agreed with the holder to pay a part of the amount due thereon in full discharge of the whole, and afterwards tendered the holder a note made and signed by himself for the amount agreed on, as in payment of the first note, it was 1 See § 95, post. 2 Hyde v. Johnson, 2 Bing. N. C. 776. 5 Routledge v. Ramsay, 8 Ad. & El. 221. 4 Whippy v. Hillary, 5 C. & P. 209. SEC. VI.] WRITTEN ACKNOWLEDGMENTS. 148 held that this was not such an acknowledgment or promise in writing as would take the first note out of the statute of limitations, since it was not the admission of a debt, but a compromise and promise to pay part for the whole.1 On the other hand, where the surviving member of a firm wrote a letter to a creditor of the firm referring to a partnership debt and acknowledging it to be unpaid, and stating that he was making arrangements to take another partner and would at- tend to the creditor’s demand in a short time, this was held an effectual acknowledgment to take the case out of the stat- ute.2 Where A and B had mutual and unsettled accounts, and A signed the following agreement: “It is agreed that B, in his general account, shall give credit to A for £147 for bricks,” it was held, that this was not such an acknowledg- ment, as to give B. a right to an action of account against A’s estate.2 A recital in a mortgage that it is made subject to a prior mortgage executed by the mortgagor and existing on the same premises, is insufficient as an acknowledgment of indebtedness on the prior mortgage, if made before the statute has run against the prior mortgage, to take it out of the stat- ute, either as against the mortgagor or his subsequent gran- tees. But it is otherwise if the promise be made after the statute has run. § 93. Lord Tenterden’s Act as affecting Acknowledgments by Accounts. —It is elsewhere stated that under the construc- tion of the statute of limitations of 21 James I., c. 16, the limitation would not take effect if there were mutual and 1 Smith v. Eastman, 3 Cush. 355. 2 Woodbridge v. Allen, 12 Met. 470. 8 Hughes v. Paramore, 35 Eng. L. &. E. 195. 4 Palmer v. Butler, 36 Iowa, 576. 5 Day v. Baldwin, 34 Iowa, 380. It has been held, where the admin- istrator of the debtor returned, under citation, an inventory and account of the debtor’s assets and debts, in which the debt was entered, that this entry was sufficient under Lord Tenterden’s Act to take the case out of the statute. Smith v. Poole, 12 Sim.17. But this case must be regarded as of doubtful authority. See § 45, ante. And it is held in a later case that when the administrator is required by law to insert all debts not barred, such insertion is not an acknowledgment amounting to a new promise. Everitt v. Williams, 45 N. J. L. 140. 144 NEW PROMISES AND ACKNOWLEDGMENTS. ([CHAP. II. reciprocal accounts between the parties showing an item charged on either side within six years! But since Lord .. Tenterden’s Act requires either a part payment or a signed acknowledgment in writing to take any case out of the statute, it is evident that items so charged in mutual ac- counts will not under that act avail to prevent the operation of the statute And so an account stated, although it is an acknowledgment of the existing condition of liability be- tween the parties, and from it the law implies a promise to pay whatever balance is thus acknowledged to be due, will not prevent the running of the statute against the liabilities included in it, unless there be evidence of some writing signed by the party to be charged.? But it is held that if the account stated, or any other subsequent promise by parol, were upon a new consideration sufficient to support it, it would amount to a new and independent contract, and might be declared on accordingly.* It was held that the treasurer of a town, who had held office for many consecu- tive years, and had accounted with the town by annual settle- ments, carrying forward the balance of each year’s account into a new account, was barred by the statute from showing errors and omissions in an account rendered by him more than six years before the beginning of an action brought against him in his official capacity, by the town, for money had and received.$ § 94. Acknowledgments by Co-contractor.— Lord Tenter- den’s Act provides that neither a joint contractor nor the executor or administrator of a joint contractor shall lose the benefit of the statute, so as to be chargeable by reason of any written acknowledgment or promise signed by the others 1 See § 194, post. . 2 Williams v. Griffiths, 2 Cr. M. & R. 45; Cottam v. Partridge, 4 Man. & G, 271, s. c. 4 Scott, 819. 8 Chace v. Trafford, 116 Mass. 529; Sperry v. Moore, 42 Mich. 353; Tarbuck v. Bispham, 2 M. & W. 2; Jones v, Ryder, 4 id. 32; Mills v. Fowkes, 5 Bing. N. C. 455. 4 See Browne on Actions, 67; and Reeves v, Hearne, 1 M. & W. 328, 8. c. 2 Gale, 4. 5 Belchertown v. Bridgman, 118 Mass. 486. SEC. VI.] WRITTEN ACKNOWLEDGMENTS. 145 of them; but that nothing shall alter, or take away, or lessen the effect of any payment of principal or interest made by any person whatsoever. It is further provided that no in- dorsement of payment, or any security, shall be deemed suffi- cient proof of such payment, to take the case out of the operation of the statute. The law laid down in Whitcomb v. Whiting, in respect to acknowledgments made by joint con- tractors, is thus unchanged by the act, in so far as the effect of a part payment is concerned. And it was held that payment of interest within six years, by one of several joint contractors, took the case out of the statute as to all. “When,” said Alderson, J., “the act passed, the case of Burleigh v. Stott! had decided that payment on account by one of many joint contractors should have the effect of fixing them all; and the act says, that the effect of such an ac- knowledgment shall not be lessened.” And Tindal, C. J. said: “On the broad construction of the act, we think pay- ment of money by one of several joint contractors an acknowl- edgment not within the mischiefs or the remedy provided by the legislature against the effect of an oral promise.” 2 So it is held that the allowing credit for interest in an 1 8 Barn. & C. 36. 2 Wyatt v. Hodson, 8 Bing. 809. In this case it was contended that Lord Tenterden’s Act, which had provided that even an actual promise to pay should not revive a debt after the end of six years, unless such promise were in writing, could not intend to give a greater effect to an implied promise. The payment of interest was only an acknowledgment from which a promise to pay might be implied; and though, by an exception in the act, it is provided that payment of interest by any person whatso- ever should prevent the time of limitation from taking effect, yet it was said that this exception must be confined to the person paying, or an ex- ecutor or administrator of such person. If a joint contractor cannot bind his co-contractor by an express promise in writing, why should he be said to do so by the payment of a small sum for principal or interest, which raises but an implied promise? The court were, however, clear in their opinion that the defendant was not protected by the act, and that the effect of part payment was not confined to the individual making it; that the payment of principal or interest stands on a different footing from the making of promises, which are often rash or ill-interpreted, while money is not usually paid without deliberation, and payment is an unequivocal act; and the authority of Whitcomb v. Whiting was recognized. 10 146 NEW PROMISES AND ACKNOWLEDGMENTS. [CHAP. II. account, being equivalent to its payment, is also sufficient to defeat the operation of the statute.1 § 95. What Payments effectual under Lord Tenterden’s Act. — The third section of the act provides that no indorsement or memorandum of any payment written or made, after the time appointed for this act to take effect, upon any prom- issory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the statute. And it is held, by construction, that in order to take a case out of the statute, it must appear 1, that the payment was made on account of a larger debt, the principle being that it ad- mits a greater debt to be due;? 2, that it is made on account of the debt sued for.2 It is also held, 3, that a verbal ac- knowledgment of part payment is insufficient to prove such payment, although if the payment be proved aliunde its appro- priation may be proved by parol declaration; that is, if the payment is proved as a fact, and not by a mere admission, its appropriation to a particular amount may be shown. by the declaration of the party making the payment, and such declaration need not have been made at the time of such payment.* 1 Pease v. Hirst, 10 Barn. & C. 122. 2 Per Parke, B., in Tippetts v. Heane, 4 Tyrw. 775. 8 Holme v. Green, 1 Stark. 488. 4 Willis v. Newham, 3 Younge & J. 518; Waters v. Tompkins, 2 Cr. M. & R. 726; Edmunds v. Downes, 4 Tyrw. 179; Wilby ». Henman, id. 960. See §§ 82, 83, ante. SEC. 1.] CLAIMS IN FAVOR OF THE GOVERNMENT. 147 CHAPTER III. EXCEPTIONS TO THE OPERATION OF THE STATUTE. SECTION I. CLAIMS IN FAVOR OF THE GOVERNMENT, § 96. The King not bound by the Statute. — By an applica- tion of the ancient maxim, nullum tempus occurrit regi, it was considered that the king was not bound by the statute of limi- tations, 82 Henry VIII! And Story, J., held it to be a safe proposition that no statute of limitations has since been held to apply to actions brought by the crown, unless by force of an express provision including such actions.2 When a statute is general in its terms, and thereby any prerogative, right, title, or interest purports to be divested or taken from the king, the king is not bound unless the statute is made by express words to extend to him? Accordingly it was held in the case of Magdalen College,* “that the king had a prerogative, quod nullum tempus occurrit regi, and therefore that the general acts of limitation, or of plenarty, should not extend to him.” The same exception, it would seem, prevailed in Scotland, for the king was expressly mentioned in the Scot- tish act of prescription of 1617.6 By the statute of 21 James I. c. 5, it was enacted that a quiet and uninterrupted enjoy- ment for sixty years, before the passing of the act, of any estate originally derived from the crown, should bar the crown from any right or suit to recover such estate under pretence of any defect in the grant and title. As proof of 1 Brook’s Reading, 67. ? United States v. Hoar, 2 Mason (C. C.), 811; Lambert v. Taylor, 4 Barn. & C. 188; Rustomjee'v. The Queen, 1 Q. B. D. 487. 3 Bac. Abr. Prerogative, E. 5. 4 11 Co. 68, 74; s.c. 1 Roll. 151. ® Kames’s Principles of Law of Scotland, 347. 148 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. possession under the terms of the act became more and more difficult with the lapse of time, the statute of 9 George III. c. 16, was enacted, by the terms of which the king was disabled from making title, except to liberties and franchises, beyond the space of sixty years, to be reckoned backwards from the time of commencing suit for the recovery of the thing in question. Under this statute, therefore, a possession of sixty years will bar even the king. But it was held that the statute, though it bars a suit by the king after sixty years, does not create a title in the adverse holder. § 97. Reason of the Rule. — The maxim nullum tempus oc- currit regi is said to be founded upon the legal fiction that the king is always busied for the public good; and, therefore, has not leisure to assert his right within the time limited to his subjects.2 The sound reason for it, however, rests in the pub- lic policy of preserving public rights, revenues, and property from injury and loss by the negligence of public officers.’ And the prerogative right of the king of England in relation to acts of limitation is, in fact, nothing more than a reser- vation or exception introduced for the public benefit, and so exists equally in favor of all governments. But independently of any doctrine founded on the notion of prerogative, statutes of limitation are to be applied according to the established rules of construction. Where the government is not ex- pressly or by necessary implication included, it ought to be clear, from the nature of mischiefs to be redressed or the language of the act, that the government was intended to be included in the operation of the statute, before a court of law will be authorized so to interpret it. Upon this ground it is held that the general words of a statute should not be taken to include the government, or affect its rights, unless such construction be indisputable.® 1 Goodtitle ». Baldwin, 11 East, 488, See Gibson v. Clarke, 1 Jac. & W. 159. By the Act 48 Geo. III. c. 47, the provisions of the Act 9 Geo. TIT. c. 16, were extended to Ireland. And see Acts 7 & 8 Vict. ¢. 105; 23 & 24 Vict. c. 53; 24 & 25 Vict. c. 62. 21 Black. Com. 247. 8 United States v. Hoar, 2 Mason, 811 (per Story, J.). 4 Id. 5 Id. SEC. I.] CLAIMS IN FAVOR OF THE GOVERNMENT. 149 § 98. Rule applied in the United States. — In the United States, the doctrine is well settled that no laches is to be imputed to the government, and that no time runs against it so as to bar its rights,! since, in a representative government, where the people act only by a delegated power, the reason for the rule is at least equally as cogent as in England.2 In an action by the people of the State of New York against the manager of a lottery for selling tickets contrary to the pro- visions of the act, by reason whereof the value of the tickets sold by him had been lost, the defendant pleaded not guilty at any time within six years, to which plea there was a demurrer and joinder. _The court considered that when the people of the state succeeded to the rights of the king of Great Britain, and became an independent government, the principle nudlwm tempus oceurrit regi became incorporated into the jurispru- dence of the state; that, on the ground of expediency and public convenience, it was a necessary principle ; and that it was important to preserve it as an attribute of sovereignty ; and that it was evident that the legislature intended that the rights of the people should not be barred, unless by the terms of the statute, nor even then, unless the people in their cor- porate capacity were particularly named.? In Massachusetts the question arose on a grant made in 1634, which it was con- tended was subject to an implied limitation. It was contended that the defendant. having been so long possessed of the estate, the commonwealth had no right to interfere, and could not 1 Stoughton v. Baker, 4 Mass. 522; Weatherhead v. Bledsoe, 2 Overt. (Tenn.) 852; Harlock v. Jackson, 1 Const. (S. C.) 185; Nimmo v. Common- wealth, 4 Hen. & Munf. 57; United States v. Williams, 5 McLean, 133; ' State v. Fleming, 19 Mo. 667; Iverson v. Dubose, 27 Ala. 418; Swann »v. Lindsey, 70 id. 507; Dun v. Miller, 75 Mo. 261; Josselyn v. Stone, 28 Miss. 753; Troutman v. May, 83 Pa. St. 455; Cary v. Whitney, 48 Me. 516; Glaze v. Western & Atlantic Railroad Co., 67 Ga. 761. The possession of land held in admitted subordination to the title of the government may be adverse to every one not holding under the government. Page v. Fowler, 28 Cal. 611; Hayes v. Martin, 45 id. 559; McManus v. Sullivan, 48 id. 7; Lord v. Sawyer, 57 id. 65. So although the occupant of public lands be an intruder as to the government, yet as against all other per- sons his possession may be adverse, and so the foundation of a title. Thomas v. Hatch, 3 Sumner (C. C.), 170. 2 People v. Gilbert, 18 Johns. 227. 8 Id. 150 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. secure the benefit of the limitation by any legal remedy. Par- sons, C. J., observed that “ the limitation is not extinguished by any inattention or neglect in compelling the owner to com- ply with it, for no laches is to be imputed to the government, and against it no time runs so as to bar its rights.”1 This principle has no application where a party seeks to enforce his private rights by a proceeding in the name of the state, as by mandamus2 For if the state is a nominal party merely, having no substantial interest in the litigation, the statute will remain operative.’ But if the state and a private party are jointly interested in a security, it seems that the stat- ute is no bar to either. In many of the states, as in New York and Massachusetts, it is now provided by statute that the same limitation shall apply to the state as to individuals.® 1 Stoughton v. Baker, 4 Mass. 522. See also Bagley v. Wallace, 16 S. & R. 245; Commonwealth v. Miltenberger, 7 Watts, 450; Parks v. State, 7 Mo. 194; Cheney v. Ringgold, 2 Har. & J. 87; Hall v. Gittings, 2 id. 112; Miller v. Lindsey, 1 McLean (C. C.), 32; Parmilee v. McNutt, 1 S- & M.179; Harlock v. Jackson, 1 Const. (S. C.) 185; People v. Columbia County Supervisors, 10 Wend. 863; Commonwealth v. Hutchinson, 10 Pa. St. 466; Gore v. Lawson, 8 Leigh, n. s. 458; State v. Joiner, 23 Miss. 500; Brimfield v. Carter, 2 Kelley (Ga.), 143; Commonwealth v. Johnson, 6 Pa. St. 186; Duke v. Thompson, 16 Ohio, 34 ; Hill v. Josselyn, 13 8S. & M. 597; Walls v. McGee, 4 Har. (Del.) 108; Bledsoe v. Doe, 4 How. (Miss.) 18; Wilson v. Smith, 5 Yerg. (Tenn.) 379; Wright v. Swan, 6 Port. (Ala.) 84; Levasser v. Washburn, 11 Gratt. 572; Desmoines County v. Harker, 34 Iowa, 84. In New York, under 1 Rev. Laws, 184, § 1, it seems that the state was not barred by an adverse possession of forty years. People v. Arnold, 4 N. Y. 508. But under Stat. 1788, c. 48, and Stat. 1801, c. 187, a suit brought in the name of the people to set aside a patent granting land was barred. People v. Clarke, 9 N. Y. 349. In Texas, the state may be barred if the occupant of land be permitted to remain in possession for a period of time fixed by the laws as creating a title to it. Jones v. Borden, 5 Tex. 410. 2 Moody v. Flemming, 4 Ga. 115. 8 Miller v. The State, 38 Ala. 600. 4 Glover v. Wilson, 6 Pa. St. 290. But see United States Bank v. McKenzie, 2 Brock. (C. C.) 298, where it was held that the plaintiff bank was within the operation of the statute although the government was a stockholder therein. 5 See Rev. Sts. Mass. c. 119, § 12; c. 120, § 20; People v. Columbia County Supervisors, 10 Wend. 363. Similar provisions, either general SEC. 1I.] CLAIMS IN FAVOR OF THE GOVERNMENT. 151 § 99, Rule not applicable generally to Municipal Corporations. —In general, the statute of limitations is to be applied as against municipal corporations in the absence of a statute provision restricting such application! Thus, in Ohio, it is held that the statute runs against a town or city.? So a city may be barred of its right to lands by the adverse possession thereof by a private person, as where a building owned by such private person had projected within the line of the street for more than twenty-one years.2 And, on the other hand, if a city occupies land for market purposes, the occupation is pro- prietary, and not a public easement, and private adverse rights are barred by the same lapse of time as if the occupation were by a private person.* It was held in Indiana that the statute of limitations did not bar a recovery against a county for mis- appropriation of funds appropriated by the constitution and laws exclusively for the purpose of maintaining common schools. But where a municipal corporation represents the public at large, or the state, or seeks to enforce rights per- taining to sovereignty, the statute of limitations, as such, is. not applicable, although in such cases the doctrine of estoppel in pais may apply.6 A municipality is entitled to take the benefit of the statute by pleading it, in the same manner as an individual.’ or applied to special cases, appear in the statutes of Maine, Vermont, New Jersey, Michigan, Minnesota, Nebraska, California, and Oregon. 1 Forsyth v. Wheeling, 19 W. Va. 818; Gaines v. Hot Spring County 39 Ark. 262. 2 Cincinnati v. First Presbyterian Church, 8 Ohio, 298; Kennebunk- port v. Smith, 22 Me. 445; Alton v. Illinois Transportation Co., 12 IIL 88; School Directors v. Georges, 50 Mo. 194; Gibson v. Chouteau, 13 Wall. 92. 3 Cincinnati v. Evans, 5 Ohio St. 594; Lane v. Kennedy, 18 id. 42. 4 Cooper v. Detroit, 42 Mich. 584. 5 State v. St. Joseph County Commissioners, 90 Ind. 359. 6 Simplot v. Chicago R. R. Co., 16 Fed. Rep. 350; District of Colum- bia v. Washington R. R. Co., 1 Mackey, 861; Madison County v. Bartlett, 1 Scam. (Ill.) 67; Coleman v. Thurmond, 56 Tex. 514; Sims v, Frank- fort, 79 Ind. 446. 7 Lancaster County v. Brenthall, 29 Pa. St. 38; Gaines v. Hot Spring County, 89 Ark. 262; and see Vicksburg v. Marshall, 59 Miss. 563; Sims v. Frankfort, 79 Ind. 486; Coleman v. Thurmond, supra; 30 Alb. L. J. 849; Cooper v. Detroit, supra. 152 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. § 100. How applied to Grantees of the Government. — The application of the maxim nullum tempus occurrit regi has been extended, in England, for the benefit of the lessees of the crown. Thus, A, having such a lease for ninety years, and having been out of possession for more than twenty years, was permitted to recover in ejectment ; for it was considered that his possession was that of the king, against whom the want of possession could not legally be set up. But it would be otherwise if the crown granted the reversion, as in that case the privilege would not follow the grantee! In the United States, it is generally held that the grantee of the state is exempt from the operation of the statute so long as the title to the premises remains in the state.? In Illinois, the exemption has been held to extend to the State Bank, since by the act creating that in- stitution it was declared that it should belong to the state ; and, therefore, a debt due to the bank was due to the state, and consequently not barred by the statute. But it was held in North Carolina, that, though laches are not to be imputed to the state, yet that this rule does not apply as to those bodies to whom the execution of a public trust is committed ; and, therefore, where the county court brought an action of assump- sit against a treasurer of public buildings, the statute was held to be a bar.t| What might be the operation of the statute in 1 Lee v. Norris, Cro. Eliz. 331. For an application of the general rule to the case of choses in action, or chattels personal, forfeited to the crown, and passing to the crown’s grantee, see Lambert v. Taylor, 4 Barn. & C. 138. * Kennedy v. Townsley, 16 Ala. 239; Hartley v. Hartley, 8 Met. (Ky.) 56; Glaze v. Western & Atlantic Railroad Co., 67 Ga. 761. Where one entered into possession of land under color of title and remained in pos- session for more than ten years after the title had been conveyed to a railroad company by the United States, it was held that to enable him to plead the statute, it was immaterial whether his title originated before or after the title passed from the United States. Tremaine v. Weatherby, 58 Towa, 615. See Marcus v. Stevens, 95 Ill. 891 ; National Mining Co. v. Powers, 3 Mont. 344; Buford v. Bostick, 58 Tex. 63. It is held that the statute does not begin to run against a suit to enforce a resulting trust, growing out of an entry on public lands with money of the plaintiff, until the patent to the lands has issued. Buren v. Buren, 79 Mo. 538. 8 State Bank of Illinois v. Brown, 1 Scam. (Ill.) 106, and see Mahone v. Central Bank, 17 Ga. 111. 4 Armstrong v. Dalton, 4 Dev. 568. It has been held that trustees of SEC. I.] CLAIMS IN FAVOR OF THE GOVERNMENT. 153 cases where the legal estate remains in the state, with an equi- table interest in private persons, was considered by Chief Jus- tice Tilghman, in Pennsylvania, to be a point which would require great consideration.1 § 101. As between the States and the General Government. — The statutes of limitation of the states are not binding upon the Federal government.? Upon a writ of error from a judg- ment of the District Court in Massachusetts, it appeared that the original action was assumpsit, brought by the United States for money had and received, against the defendant in error as administrator. The defendant pleaded, first, the general stat- ute of limitations of Massachusetts; and, second, the statute of that state limiting suits against executors and administra- tors. To these pleas the defendant demurred. The court (Story, J.), said: “The statutes of Massachusetts could not originally have contemplated suits by the United States, not because they were in substance enacted before the Federal Constitution was adopted, on which I lay no stress; but be- cause it was not within the legitimate exercise of the powers of the state legislature. It is not to be presumed that a state legislature mean to transcend their constitutional powers ; and, therefore, however general the words may be, they are always restrained to persons and things over which the jurisdiction of the state may be rightfully exerted. And if a construction could ever be justified which should include the United States at the same time that it excluded the state, it is not to be pre- sumed that Congress could intend to sanction an usurpation of power by a state to regulate and control the rights of the a township holding title to lands granted to them by the general govern- ment for school purposes, are not exempt from the operation of the stat- ute, in an action brought by them to recover possession of the premises. Oxford v. Columbia, 38 Ohio St. 87. But see, apparently contra, Louis- ville Male High School v. Auditor, 80 Ky. 336. 1 See Johnston v. Irwin, 3S. & R. 291. 2 United States v. Speil, 3 McCrary, 107; Swearingen v. United States, 11 Gill & J. 373. The purchase, in 1861, of public land in Mississippi from officers acting under an ordinance of the convention which had previously enacted the ordinance of secession, gave the purchaser no title against the United States against which the subsequent adverse possession could not be set up. Bates v. Aven, 60 Miss. 955, 154 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. United States. . . . The mischiefs, too, of such a construction would be very great. The public rights, revenue, and property would be subject to the arbitrary limitations of the states ; and the limitations are so various in these states that the govern- ment would hold their rights by a very different tenure in each.”! So where B, a deputy commissary-general of the United States, had received from M,a deputy quartermaster- general, a sum of money, and acknowledged the same by a receipt signed by M, with his official description, it was held that the United States could treat M as their agent in the transaction, and that the statute of limitations was not a bar to an action brought against B for money had and received.? § 102. Rule does not apply in favor of the Government as Grantee, when. —It has been insisted that the rule does not apply to a claim which the United States takes as transferee from another, even when the transfer includes the legal inter- est. This, it was held, would be true, if the statute should be- gin to run against the claim while it is still in the hands of the assignor. In the case at bar, however, the demand was upon a promissory note, of which the government of the United States became owner and holder before it became due; and the statute, therefore, was held not to be a defence to the action. But where, before the transfer to the United States of an instrument which is the evidence of debt, the term prescribed by the statute has elapsed, it is obvious that the transfer of it cannot give it any greater validity that it pos- sessed before the transfer.* 1 United States ». Hoar, 2 Mason (C. C.), 811; McNamee v, The United States, 6 Eng. (Ark.) 148. 2 United States v. Buford, 3 Peters, 12. 7 8 United States v. White, 2 Hill, 59. "4 Per Mr. Justice M’Lean in United States v. Buford, supra. Though the United States was a stockholder in the Bank of the United States, and was so far a party in all suits to which the bank was a party, it was held that the doctrine of nullum tempus occurrit regi did not apply to exempt the bank from the operation of the statute of limitations; for it is a settled principle that, where a sovereign becomes a member of a trading compa- ny, he divests himself, with reference to the transactions of the company, of the prerogatives of sovereignty, and assumes the character of a private citizen. United States Bank v. McKenzie, 2 Brock. (C.C.) 393. SEC. II.] DISABILITIES IN PERSONAL ACTIONS. 155 ‘ SECTION II. OF DISABILITIES IN PERSONAL ACTIONS. (a) Generally. § 103. Designated by the Statute of 21 James I. — It is pro- vided by section 7, of the statute of limitations of 21 James I. c. 16, that if a person entitled to bring any one of the personal actions therein named shall be, at the time the cause of action accrues, within the age of twenty-one years, feme covert, non compos mentis,! imprisoned, or beyond the seas, such person 1 Persons deaf and dumb or of feeble intellect, but not non compotes mentis, do not come within the operation of the statute of limitations. Christmas v. Mitchell, 3 Tred. Eq. 535. See Brower v. Fisher, 4 Johns. Ch. 441, and § 107, note, post. Since legal liabilities may be enforced against insane persons, the in- sanity of a defendant will not, in the courts of law, take a claim against him out of the operation of the statute of limitations, and this is the rule whether the defendant’s mental incompetency has been judicially deter- mined or not. Sanford v. Sanford, 62 N. Y. 553; Aldrich v. Clark, 12 Vt. 413; Potts v. Hines, 57 Miss. 735. But, in the English courts of equity, different rules have been applied in suits brought to enforce claims against the estates of deceased persons judicially pronounced insane, it being held in such cases that the lapse of six years during the lunatic’s life will not bar a claim of this description, since the Court of Chancery will take judicial notice, in a suit to obtain payment out of his assets, after his death, of the fact that an action against the lunatic in his life- time would have been restrained by the Lord Chancellor on petition in lunacy. Stedman v. Hart, Kay, 607; Rock v. Cooke, 1 Col. C. C. 477; Same v. Same, 1 De G. & Sm. 675. See Buswell on Insanity, §§ 145, 146. It is a presumption that insanity once existing continues, and the bur- den of proof is upon the party seeking to prove either a recovery or a lucid interval. Jeffries v. Dowdle, 61 Miss. 504; Buswell on Insanity, §§ 187- 189, notes and cases cited. And when insanity has once existed and a subsequent act of its subject is alleged to have been done in a lucid inter- val, it must be shown that capacity existed at the very time of the doing of the act. Id., § 188. Like all presumptions, this arises from our observation and experience of the mutual connection between the facts shown to exist and those sought to be established by inference from those facts. So where insanity appears as the result of some special and tem- porary cause, as in cases of delirium induced by disease, the presumption does not apply. Id., §§ 190, 191. 2 In New York, the plaintiff's absence from his state suspends the run- 156 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. shall be at liberty to bring such action within the time limited therefor by the statute, after his disability has ceased.) A person for whose use a suit is brought is entitled to the benefit of any disability to which he would have been entitled had the suit been brought in his own name.? It is considered that a person held in slavery is “imprisoned,” within the meaning of the proviso in the statute,? and the limitation begins to run from the time of his emancipation.* § 104. Statutes creating Disabilities strictly construed. — The courts are inclined to construe the exception of disability strictly, since the general words of a statute are always to receive a general construction, and the effect of them is not to be limited unless by express words of exception in the statute itself.5 Thus the right of action of absentees not being saved in the statute of limitations of the island of Jamaica, it was held that the omission was intentional and not to be supplied by construction. So infants will be barred by the limitation of a statute which does not contain a saving ning of the limitation, whether such absence begin before or after the . cause of action accrues. Dorr v. Swartwout, 1 Blatch. 179; Richardson v. Curtis, 3 id. 285. 1 Since the passage of the statute authorizing married women to sue, it is held in Maine that the disability of coverture is abrogated. Brown v. Cousens, 51 Me. 801. And of infancy, also, if the married woman be an infant. Thompson v. Cragg, 24 Tex. 582. Choses in action of the wife accruing during coverture vest immediately in the husband the right to sue for them, and the statute then begins to run. Cook v. Lindsey, 34 Miss. 451. 2 Davis v. Sullivan, 2 Eng. (Ark.) 449. But the grantee of one who might have availed himself of the disability of infancy is not entitled to avail himself of that exception. Williams v. Council, 4 Jones (N. C.), 206. 8 Matilda v. Crenshaw, 4 Yerg. 299. 4 Price v. Slaughter, 1 Cinn. (Ohio) 429. 5 See Bucklin v. Ford, 5 Barb. 393; The Sam Slick, 2 Curtis, 480; Howell v. Hair, 15 Ala. 194; United States v. Maillard, 4 Benedict (U. S.), 459; Taylor v. McGill, 6 Lea, 294. And see § 16, ante. Doubt as to the Tight or difficulty in asserting it does not affect the running of the statute. Weaver v. Lyman, 52 Ind. 708. 6 Beckford v. Wade, 17 Ves. 87. SEC. II. ] DISABILITIES IN PERSONAL ACTIONS. 157 clause in their favor,! and the fact of a plaintiff’s having been under the disability of infancy during the time that the estate against which his claim exists was under administration, will not prevent such claim from being barred by the lapse of time prescribed by the statute.2 So the operation of the statute will not be suspended in favor of an estate by the disability of the heir, if the executor had the right of action,® and if the statute has begun to run against the testator, it continues to run against the executor, unaffected by the minority of the devisee, until the title passes to him from the testator. Where a defendant had been discharged under an insolvent act, the court held that the discharge would not prevent the statute from running against an action of as- sumpsit upon a contract made before the passage of the act, the money not falling due on the contract until after the dis- charge. The court said: “Though the defendant’s virtual protection from prosecution by his discharge produces the same result as his absence from the state, yet we are not warranted by any rule of construction, in deciding that every cause which produces the same effect as the one mentioned in the act comes within it. It is true that the reason why the absence of the defendant from the state excuses the plaintiff from prosecuting, is, that the defendant is beyond the reach of the process of the courts. . . . But it is not for the court to extend the law to all cases coming within the reason of it, so long as they are not within the letter.” 6 1 Buckinghamshire v. Drury, Wilm. 177. 2 Hall v. Bumstead, 20 Pick. 2. 8 Darnall v. Adams, 13 B. Mon. 273. 4 Sparks v. Roberts, 65 Ga. 571; Morgan v. Wood, 69 id. 599; Norris v, Dunn, 70 id. 796; Granger v. Granger, 6 Ohio, 35. Where suit against a personal representative is brought within the prescribed time, the bar of the statute is saved as to all the assets of the estate, including realty de- scended to the heir, which on the exhaustion of the personalty might be reached in equity, although the bill for that purpose be filed more than seven years after the death of the testator. Wooldridge v. Page, 9 Baxt. 825. 5 Sacia ». De Graaf, 1 Cowen, 356. The rules excluding constructive disabilities applies both to real and personal actions; and so it would seem that by the civil law prescription runs against all persons, without excep- tion, unless they are included in some exception established by law. Civil 158 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. § 105. But Exception applied by Construction to Actions in Assumpsit.— On the other hand, when it was contended that a plaintiff in indebitatus asswmpsit, having been under disa- bility, should be excluded from the benefit of the saving clause, since the action of assumpsit is not among those specifically named in the statute of 21 James I., Lord Denman, consider- ing the authorities elsewhere referred to,! said the court could not overrule the cases which had decided that the action of assumpsit was included in the statute; and, though he thought these cases rather wrong, the omission in the statute was so clearly not intended that the courts were perhaps justified in construing the language of the act to include the action of assumpsit. The other judges concurred? It is obvious that the question raised in these cases can only be of importance in those jurisdictions where the common-law divisions of actions are retained in practice; and the local statutes of limitation in the United States are generally made applicable to all actions of contract not arising out of specialties. § 106. Disabilities arise only from express Statutory Pro- visions. —In the absence of any saving clause in the statute, it seems that, at law, the limitation will run against a plaintiff whatever the kind and degree of his disability. Thus where suit was brought on behalf of a lunatic for rent due, more than six years after the claim had accrued, in which suit the statute of limitations (8 & 4 Wm. IV. c. 27, § 42) was pleaded, it was held, no express exception appearing in the statute in favor of lunatics, that the claim was barred. So it was held that one found to be an habitual drunkard, by inquisition, could not revive a note once barred by the statute. But the Code of Louisiana, p. 703. It seems to have been considered that the rights of infants, femes coverts, persons insane, in prison, etc., were saved by the statute 82 Hen. VIII. It will appear, however, on examination of that statute (see App.), that the saving clause only extended to persons who were subject to such disabilities at the time the statute was enacted. 1 See §§ 136, 187, post. 2 Piggott v. Rush, 4 Ad. & El. 912. 8 Humfrey v. Gery, 7 C. B. 567. But see contra, Dodge v. Cole, 97 Ml. 338. 4 Hannum’s Appeal, 9 Pa. St. 471. SEC. II. ] DISABILITIES IN PERSONAL ACTIONS. 159 tule woul seem to be different when the insane plaintiff has been the victim of fraud in respect of the subject-matter of the suit. Thus it was held that if one, while insane, was fraudulently induced to convey his property to another, the statute would not run against his right to have the deed set aside until he recovered his reason and discovered what he had done, although his rights were not saved by the terms of the statute. § 107. Persons under Disability may sue: When by Guardian or Committee. — As the law recognizes no limitation in favor of defendants under disability except as the same may be created by the statutes of limitations, so, on the other hand, parties under disability may sue in the courts, and the stat- utes of limitation are not construed to bar or suspend such suits. Thus in an early case, the action being for the benefit of an infant suing by his guardian, it was contended that the infant should have waited until full age, because the six years were elapsed during his infancy, and therefore he could only pursue his action according to the words of the saving clause of the act, that is within six years after his full age. But this was not regarded by the court; and the reporter adds that the infant may well pursue his remedy at any time within age, although the six years have elapsed.2 But ac- tions to enforce the rights of a person adjudged insane by a competent tribunal must be instituted by the guardian, com- mittee, or other person to whom the custody of the insane person and his estate has lawfully been committed; and the fact that such an action has been commenced by the insane person himself, or by a stranger in his behalf, has been held ground for abating the suit. But such actions must be brought in the name of the insane person if he be of full age. A person for whose use a suit is brought is entitled to 1 Crowther v. Rowlandson, 27 Cal. 376, 384; Dicken v. Johnson, 7 Ga. 484. See Buswell on Insanity, § 147, and note to § 103, ante. 2 Chandler v. Villett, 2 Saund. 117. 5 Collard v. Crane, Brayt. (Vt.) 18; Holden v, Scanlin, 30 Vt. 177. But see Allen v. Ransom, 44 Mo, 263. * Cocks v, Darson, Hobart, 215; Drury v. Fitch, Hutton, 16; Northum.- 160 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. the benefit of any disability to which he would have been entitled, had the suit been in his own name.1 § 108. Burden to prove Disability on the Plaintiff: Once proved, presumed to continue. — When a plaintiff sets up his disability as a bar to the operation of the statute, it is incum- bent upon him to prove that the disability existed when the cause of action accrued, and that it has been continuous; for if the statute limitation once begins to run, no disability subsequently occurring will suspend or defeat it.2 Thus, if a plaintiff be within the jurisdiction when his right to sue in a personal action accrues, and thereafter departs beyond the seas and remains until the period of limitation shall have berland’s Case, Popham, 141; Shaw v. Burney, 1 Ired. Eq. 148; Green v. Kornegay, 4 Jones (N. C.), 66; Jelly v. Elliott, 1 Ind. 119; Reed v. Wil- son, 13 Mo. 28; Cameron’s Committee v. Pottinger, 3 Bibb (Ky.), 11. It was the doctrine of the early English Jaw that neither idiots, madmen, nor such as were born deaf and dumb could sue in the courts. But the right of lunatics and deaf and dumb persons to sue is said generally to have been admitted before Lord Coke’s time, although the right of idiots to appear in the courts was still questioned. At the present day this dis- tinction does not obtain, since, if the party be mentally incapable of per- forming any act, the modern law will not concern itself to inquire into the causes, or the specific characteristics, of his incapacity. See Buswell on Insanity, §§ 116, 117, and cases cited. 1 Davis v. Sullivan, 2 Eng. (Ark.) 449. 2 Hall v. Timmins, 1 Rich. (8. C.) 120; Anderson v. Smith, 2 McCord, 269; Doe v. Shane, 4 T. R. 306, note (6); Underhill v. Mobile Fire Ins. Co., 67 Ala, 45; Kistler v, Hereth, 75 Ind. 177; Pinckney v. Burrage, 31 N. J. L. 21; Roberts v. Moore, 8 Wall. Jr., 292; Hogan v. Kurtz, 94 U. 8S. 773; Grigsby v. Peak, 57 Tex. 142; Dekay v. Darrah, 2 Green (N. J.), 288; Clark v. Richards, 3 id. 347; Wallace v. Fletcher, 30 N. H. 434; Tracy v. Atherton, 36 Vt. 503; McFarland v. Stone, 17 Vt. 165; Mercer v. Selden, 1 How. 37 ; Moores v. White, 6 Johns. 360; Hodges v. Dunden, 51 Miss. 199; Hogg v. Ashman, 83 Pa. St. 80; Wood v. Currey, 57 Cal. 208. So the limitation begins to run against an insane person upon his recovery, and is not interrupted by a recurrence of the insanity. Clark v. Traill, 1 Met. (Ky.) 35. It has been held that the minority of an "heir, who succeeds to a dominant tenement while the twenty years are running, interrupts the prescription. Melvin v. Whiting, 18 Pick. 188; Watkins v. Peck, 18 N. H. 860; Lamb v. Crosland, 4 Rich. (S. C.) 536. But this is probably not law. See authorities cited supra, SEC. II. ] DISABILITIES IN PERSONAL ACTIONS. 161 elapsed, he and his representatives will be barred.1 A tem- porary absence, however, for a special purpose, with the intention of returning, does not interrupt an adverse posses- sion.2 Coverture will not suspend the operation of the stat- ute as in favor of a female defendant if the cause of action accrued before the coverture.2 But if the plaintiff shows himself to be within the exception of disability, —as that he is insane,— the disability will be presumed to continue until such time as will take the case out of the statute, unless the other party prove that the disability has ceased.* §109. Cumulative Disabilities not Effectual.— One disabil- ity, as of infancy, cannot be grafted upon another, as of insanity, so as to avoid the effect of the statute of limita- tions.6 This rule is applied in the case of successive cover- tures. And where a single woman, being an infant entitled to the possession of personal property, made a demand there- for, and afterwards during her infancy married, and her cover- ture continued until the suit was brought, it was held that the 1 Smith v. Hill, 1 Wils. 184; Peck v. Randall, 1 Johns. 165. See also Dennis v. Anderson, 2 Hen. & Munf. 289; Dowell v. Webber, 2 S. & M. 452; Dillard v. Philson, 5 Strob. 213; Landes v. Perkins, 12 Mo. 238; Smith v. Newby, 13 id. 159; Byrd v. Byrd, 28 id. 144; Pendergast v. Foley, 8 Ga. 1; Brown v. Morrick, 16 Ark. 612; Skidmore v. Romaine, 2 Bradf. 122; Workman v. Guthrie, 29 Pa. St. 495. In some of the states there are statutory exceptions to this rule, and in others the courts have created them. See Lawrence v. Orphan House Trustees, 2 Denio, 577. So in Texas, a debt barred by the statute of another state before the immigration of the debtor is barred there also if the whole period of lim- itation prescribed by the statute of the foreign state has elapsed, and in such cases the general rule that when the statute has begun to run nothing can stop it does not apply. Hays v. Cage, 2 Tex. 501. 2 Cunningham »v. Patton, 6 Pa. St. 355. 8 Currier v. Gale, 3 Allen, 328. 4 Attorney-General v. Parnther, 3 Bro. C. C. 441; Buswell on Insanity, § 187, and cases cited. § Bensell ». Chancellor, 3 Whart. 371; Doe v. Teal, 7 U. C. Q. B. 370; Buswell on Insanity, § 150. See Union Savings Bank v. Taber, 13 R. I. 683; Hunton v. Nichols, 55 Tex. 217; White v. Clawson, 79 Ind. 188, and § 479, post. 6 Gaines ». Hammond, 2 McCrary, 432; Mitchell v. Berry, 1 Met. (Ky.) 602, and cases cited to § 120, post. 11 162 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. II. cause of action accrued at the time when the demand was made; and that the action, having been commenced more than six years after she became of age, was barred by the statute.1 But where a legacy to a daughter was made payable on her marriage, or when she became of age, and she married before arriving at full age, it was held, in a suit for the leg- acy brought by her and her husband after the lapse of six years, that she came within the exception in favor of femes coverts, her right not accruing until after her marriage.? The same rule holds in personal as in real actions; and in an action of ejectment, the Supreme Court of the United States held, upon a review of the authorities, that disabilities which bring a person within the exception of the statute cannot be piled one upon another; and that the party claim- ing the benefit of the exception in the statute can avail him- self only of the disability existing when the right of action first accrued. Although in South Carolina, in cases affect- ing the possession of lands, it is otherwise provided, yet when 1 Butler v. Howe, 13 Me. 397. See Wellborn v. Weaver, 17 Ga. 267; Ford v, Clements, 13 Tex. 592; Keeton v. Keeton, 20 Mo. 530; White v. Latimer, 12 Tex. 61; Ashbrook v. Quarles, 15 B. Mon. 20; Clark v. Jones, 16 id. 121; Fritz v. Joiner, 54 Ill. 101. 2 Wood v. Aiken, 1 Paige, 616. See Brown v. Crawford, 9 Humph. 164; Sledge v. Clopton, 6 Ala. 589; Bailey v. Reed, 14 Phila. (Penn.) 167. 8 Mercer v. Selden, 1 How. 37. See Dease v. Jones, 23 Miss. 133; Starke v. Starke, 3 Rich. (S. C.) 488; Caldwell v. Thorp, 8 Ala, 253; Stevens v. Bomar, 9 Humph. 546; Dugan v. Gittings, 3 Gill, Md. 138; Thorp v. Raymond, 16 How. 247; Tyson v. Britton, 6 Tex. 222. Nor can there be any tacking of disabilities existing in different persons, as the mother’s upon that of the children. Mitchell v. Berry, 1 Met. (Ky.) 602; Bensell v. Chancellor, 3 Whart. 871, Although where there are suc- cessive owners of the cause of action for equitable relief, and the right to prosecute arises in the time of the first, the period of limitation com- mences at that time and continues attached to the demand during the several subsequent changes of both, so that when the statute period has elapsed the demand is barred, though the last proprietor had recently ac- quired his right; it is held that if the first legal proprietor of the claim is a trustee having no beneficial interest, the cause of action (as, for in- stance, the right to foreclose a mortgage) may be regarded as resting in the cestut que trust, and, if she were then under the disability of infancy, the statute does not begin to run as against her until her majority. Buck- lin v. Bucklin, 1 Abb. App. Dec. 242, SEC. II. ] DISABILITIES IN PERSONAL ACTIONS, 163 the statute has once begun to run, in personal actions, it will continue to run, notwithstanding any intervening disability, and in accordance with the well-settled rule. § 110. One Disability not to be merged with Another. — There can be no merger of one disability with another. Thus, the marriage of a female infant will not merge the disability of infancy in that of coverture, so as to require her and her husband to bring their action within the time limited after the marriage, but they are still entitled to the benefit of the limitation, reckoned from the time of the wife’s coming of age.2. And where there are several disabilities coexisting in the same person when his right of action accrues, he is not obliged to sue until all are removed.? Lord Hardwicke says, “Tf a man both of non-sane memory and out of the kingdom come into the kingdom and then go out of the kingdom, his non-sane memory continuing, his privilege as to his being out of the kingdom is gone, and his privilege as to non-sane memory will begin from the time he returns to his senses.’’ ¢ (b) Absence from the Jurisdiction. § 111. Construction of Term “Beyond the Seas.” In Eng- land, the words “ beyond the seas” are held by the modern law to be synonymous with the words “out of the territo- 1 McCollough v. Speed, 3 M’Cord, 455, and see Barino v. McGee, id. 452; Fewell v. Collins, 1 Const. 202. 2 Robertson v. Wurdeman, 2 Hill (S. C.), 324; Lagton v. The State, 4 Harr. (Del.) 8; Martin v. Letty, 18 B. Mon. 573; Carter v. Cantrell, 16 Ark. 154. See § 123, post, and cases there cited. ® Plowden, 375; North v. James, 61 Miss. 761. In an action in which husband and wife are plaintiffs, being for a libel on the wife, the statute cannot be pleaded during the coverture of the wife. Bailey v. Reed, 14 Phila. (Pa.) 167. 4 Start v. Mellish, Atk. 610; and see Keeton v. Keeton, 20 Mo. 530; Demarest v. Wynkoop, 8 Johns. Ch. 129; Butler v. Howe, 13 Me. 897. If the property of an infant is converted by another during the infancy, the statute will run against the infant on his reaching his majority, in favor of the tortfeasor, although the property be removed without the state; in the absence of a saving clause in the statute. Jordan v. Thomp- son, 7 Ga. 517. 164 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. ries,” “ out of the realm,” “ out of England,” and are not to be taken literally.1 So in the United States it is generally held that these words, or equivalent words? are to be taken to mean “ out of the state,” or “ out of the jurisdiction of the state.”8 Thus, in the Supreme Court of the United States, the statute of limitations of Georgia being pleaded in an action of eectment, the only question was whether the plain- tiff, who resided in Virginia, came within the exception in favor of persons “beyond seas;” and the court were unani- mously of opinion that the words must be held to be equiva- lent to the words, “ without the limits of the state.”* Later, the same court held that the same words in the statute of limitations of Maryland should be construed as equivalent to the words “ without the jurisdiction of the state.”® But in Pennsylvania,® Iowa,’ Missouri,’ and, it seems, in Illinois 9% 1 Ruckmaboye v. Mottichund, 32 Eng. L. & E. 84. And there is no such thing as constructive inhabitancy within the meaning of the clause. Id. Lord Holt considered that the words ‘* beyond seas ’’ intended any place in Ireland. Anon., Shaw, 91. But where a plaintiff replied that he was resident in foreign parts, out of the realm of England, to wit, at Glasgow in Scotland, the replication was held bad, and it was said that, to bring him within the exception, he must be beyond the seas. King v. Walker, 1 W. Bi. 286. 2 In Kentucky, the exception in the statute is in favor of plaintiffs ‘‘ out of the country,” which words are construed to mean ‘ out of the state.’? Musell v. Israel, 3 Bibb, 570; May v Slaughter, 3 Marsh. 507. 8 Faw v. Roberdeau, 3 Cranch, 174. * Murray v. Baker, 8 Wheat. 541. 5 Bank of Alexandria v. Dyer, 14 Peters, 141. The same construction obtains in Maryland, Brent v. Tasker, 1 H. & McHen. 89; Pancoast ». Adams, 1 Har. & J. 350; in New Hampshire, Galusha v. Cobleigh, 18 N. H. 79; Ward v. Cole, 82 id. 452; in South Carolina, Forbes v. Foot, 2 M’Cord, 331; in Georgia, Denham v. Holeman, 26 Ga. 182; in Maine, Drew v. Drew, 27 Me. 3889; in Connecticut, Hatch v. Spofford, 24 Conn. 482; in Michigan, Campbell v. White, 22 Mich. 178; and in Vermont, Hall v. Nasmith, 28 Vt. 791. 6 Ward v. Hallam, 2 Dall. 217, s. c. 1 Yeates, 329; Thurston v. Dawes, 9S. & R. 285, 7 Darling v. Meacham, 2 Greene, 602. 8 Marvin v. Bates, 138 Mo. 217; Fackler v. Fackler, 14 id. 431; Keeton v. Keeton, 20 id. 530. ® Mason v. Johnson, 24 Ill. 159. SEC. II.] DISABILITIES IN PERSONAL ACTIONS. 165 and Tennessee,! the words “ beyond the seas” are construed to mean without the limits of the United States.? 1 See Shelby v. Guy, 11 Wheat. 361. 2 As this construction is opposed to that adopted by the federal courts, it is obvious that embarrassments may arise when the latter tribunals are called on to adopt one or the other of the opposing constructions. On this subject Johnson, J., in Shelby v. Guy, 11 Wheat. 361, said: ‘* That the statute laws of the states must furnish the rule of decision to this court, as far as they comport with the Constitution of the United States, in all cases arising within the respective states, is a position that no one doubts. Nor is it questionable that a fixed and received construction of their respective statute laws, in their own courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that this admission may, at times, involve us in seeming inconsistencies; as where states have adopted the same stat- utes, and their courts differ in the construction. Yet that course is neces- sarily indicated by the duty imposed on us to administer as between individuals the laws of the respective states, according to the best lights we possess of what those laws are. This court has uniformly manifested its respect for the adjudications of the state tribunals, and will be very moderate in those claims which may be preferred on the ground of comity. Yet, in a case like the one now occurring, it cannot acknowledge the ob- jection to go further, at present, than to examine the decision formerly rendered on the construction of these words. We have reflected and heard arguments on our former decision, and not a doubt has been enter- tained except on the question, how far we were bound to surrender an opinion under the actual state of difference existing between our con- struction and that of the state from which this cause comes.’? As the case was finally decided upon other grounds, the court did not decide the point of construction, trusting that the courts of the state from which the cause came would, in time, furnish such lights upon the local law as would enable the federal courts to come to a satisfactory conclusion upon the question. At the time when the District of Columbia included the county of Alexandria, ceded by Virginia, and the county of Washington, ceded by Maryland, it was held that these counties did not stand to each other in the relation of separate states, being united under one territorial government, so that residents of Alexandria County were not, within the intent of the statute of limitations, ‘‘ beyond the seas ’’ in respect to the county of Washington. Bank of Alexandria v. Dyer, 14 Peters, 141. See Lafonde v. Ruddock, 24 Eng. L. & E. 239. It is held that the territory of Annapolis, ceded to the United States by Maryland for a Naval Academy, is not ‘* without the state ’’ in the sense in which that expression is used in the statute of limitations. Maurice v. Worden, 52 Md. 283. In Mas- sachusetts, it is provided by statute that the commonwealth shall re- tain concurrent jurisdiction with the United States in and over all tracts 166 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. § 112. Exception does not occur in several States. — In the statutes of limitation of several states a saving clause in favor of absent plaintiffs was never enacted, or has been repealed since its original enactment. In Massachusetts, the statute of 1786 provided an exception in favor of parties plaintiff, “absent from the United States.” This exception was re- tained in the Revised Statutes of 1836,1 and in the General Statutes of 1860,? but does not appear in the excepting clause of the Public Statutes of 1882. In Maryland, the act of 1818 repealed the exceptions in former statutes in favor of persons “beyond seas.” It is held that the repeal was not a violation of any constitutional right, or of any obligation of contract. The statute of New Jersey contains no excep- tion in favor of plaintiffs abroad, excepting in respect of land titles.5 In Arkansas, mere non-residence of a plaintiff does not avoid the statute bar.6 And in Missouri,’ Indiana,’ and Georgia,? the absence of the plaintiff from the state does not suspend the running of the statute limitation. of land ceded to the United States, so far that all civil and criminal pro- cesses issued under the authority of the commonwealth may be executed thereon in the same way and manner as if jurisdiction had not been ceded, Pub. Sts. c. 1, § 4; and similar provisos occur in other states. It would seem that under this statute the statute of limitations would always apply in suits brought by process of the state courts, in which the parties or one of them are resident within the ceded territory. 1 Rev. Sts. 1836, c. 120, § 6. 2 Gen. Sts. 1860, c. 155, § 8. 8 Pub. Sts. 1882, c. 197, § 9. The exception was repealed by the acts of 1880, c. 13. 4 Frey »v. Kirk, 4 Gill & J. 509. 5 Act 7th Feb., 1799, § 4; Dig. 1838, p. 314, § 2. See Taberrer v. Brentnall, 3 Harr. (N. J.) 262; Beardsley v. Southmayd, 3 Green, 171. 6 Brian v. Tims, 5 Eng. 597. Where a plaintiff, at and ever since the time when the cause of action accrued, has lived out of the state, the fact that the note upon which suit was brought was executed and delivered to the plaintiff within the state, and has ever since remained within the state in the hands of his agent, does not bar the plaintiffs right of action. Wilson v. Keller, 8 id. 509. 7 Smith v. Newby, 13 Mo. 159. 8 Jones v. Hays, 4 McLean, 521. ® Wynn v. Lee, 5 Ga. 217. SEC. II.] DISABILITIES IN PERSONAL ACTIONS. 167 § 118. Construction of the words “Absent from the State.” — It is held that, in order to bring the case within the statute exception, the plaintiff must be both absent from the state and resident in another state, and the absence must be con- tinuing, not merely from one date to another.! A party is considered to be “‘ absent from and reside out of the state,” within the meaning of the exception, when his domicil within the state is so broken up that it would not be possible to serve legal process upon him there, by copy or otherwise.? In order to such service, he must have some place of abode where in his absence his family or effects remain, and to which he may be expected, within some convenient time, to return. These conditions are not satisfied by the party’s mere temporary absence on business, even although this be 1 Hall v. Nasmith, 28 Vt. 791; Bell v. Lamprey, 52 N. H. 41; Drew v. Drew, 37 Me. 389; Langdon v. Doud, 6 Allen, 423; Campbell v. White, 22 Mich. 178. Evidence that a party ‘‘ went east’’ and resided there sev- eral years was held not sufficient to establish that, by going east, he went out of the state, so that the statute of limitations would cease to run in his favor. Tremaine v. Wetherbee, 58 Iowa, 615. ° Ward v. Cole, 82 N. H. 452; Ward v. Howe, 38 id. 85; Hackett v. Kendall, 23 Vt. 275; State v. Furlong, 60 Miss. 889. It would seem that this is the real test in every case, and it is said that it is not necessary in order to suspend the operation of the statute that the party should remove absolutely, nor on the other hand, in order that the statute may operate, that his residence should be within the state, while he is temporarily absent. Every absence, whether with the animus revertendi or not, prevents service, and therefore suspends the statute. Vanlandingham v. Huston, 4 Gilm. (IIL) 125. So the absence of a defendant from the state can have no effect upon his rights when he sets up the statute of limitation, if during his absence he was represented by a tenant or agent upon whom service might have been made. Hunton v, Nichols, 55 Tex. 217. 3 Campbell v. White, supra. 4 Penley v. Waterhouse, 1 Iowa, 498. Where a citizen of Connecticut left his family and property behind him and went into another state, two succes- sive years, on business, and remained there eight months each year, intend- ing at his departure and during his absence a temporary absence only, and did return, he was held not to be “ without the state,” within the meaning of the statute whereby the time of such absence is to be deducted from the running time of the statute (Williams, C. J., dissenting). Gage v. Haw- ley, 16 Conn. 106. See also Gilman v. Cutts, 23 N. H. 376; Bucknam v. Thompson, 88 Me. 171; Garth v. Robards, 20 Mo. 323; Lane v. National Bank, 6 Kan. 74. Absence in California for years, the family of the 168 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. for several consecutive months, so long as he retains his origi- nal domicil.1 So, absence in the military service does not of itself prevent the running of a statute limiting criminal pro- ceedings? It is held that the exception obtains when the cause of action arises in another state, within which both parties then reside, and continue to reside until after the ac- tion is brought.2 If a party plaintiff residing out of the state begins an action within the state, this is considered to be a constructive return, from the time of which the statute begins to run.t § 114. Rule, how applied to Corporations. — In New York, the exception in the statute in favor of absent plaintiffs > ap- plies to natural persons only, and not to corporations.6 And it is held that a corporation in another state is not a person beyond the limits of the state within the meaning of the stat- debtor meanwhile remaining on the homestead in New Hampshire, was deducted from the time limited by the statute. Brown v. Rollins, 44 N. H. 46. The question of residence is one to be decided by the jury from the circumstances of the particular case. Conrad v. Nall, 24 Mich. 275; Ware v. Gowen, 111 Mass. 526. 1 Collester v. Hailey, 6 Gray, 517; Langdon v. Doud, 6 Allen, 423. It was held, if a person whose home was permanently established in the state of Maine went out of the state, and made a contract, and a cause of action thereon accrued against him before his return home, that such con- tract did not come within the provisions of § 28, c. 146, of the Revised Statutes; that ‘‘ the time of his absence shall not be taken as any part of the time limited for the commencement of the action.” Crehore v. Mason, 23 Me. 4138. The disability of being ‘‘ beyond sea,’’ under the statute of limitations of Ohio, is removed by death, and the statute commences run- ning against the heirs on the death of the ancestor, whether the heirs are under disability or not. Ridley v. Hettman, 10 Ohio, 524; Whitney ». Webb, id. 5138. And see Markle v. Burch, 11 Gratt. 26. But where the debtor resides out of the state at the time the cause of action accrues, and never returns, but dies abroad, the statute commences running at the time of granting letters testamentary or of administration in the state from which he was absent at the time of his death. Benjamin v. De Groot, 1 Denio, 151. 2 Graham v. Commonwealth, 51 Pa. St. 255. 8 Hatch v. Spofford, 24 Conn. 4382. 4 Yoast v. Willis, 9 Ind. 549. 5 2 Rev. Sts. 227, § 27. ° Faulkner v. Delaware & Raritan Canal Co., 1 Denio, 441. SEC. II.] DISABILITIES IN PERSONAL ACTIONS. 169 ute of limitations of Arkansas.!_ Where a contract was made at Richmond, at the banking-house of the plaintiff, between the president and directors of the branch bank of the United States and the defendant, it was held that the facts of there being an office of discount and deposit of the Bank of the United States at Richmond, and of the residence there of the president and directors of the branch bank, must be consid- ered, with reference to the contract, as fixing the residence of the corporation itself in Richmond, and not in Philadelphia, the place of business of the principal bank, so far as the sav- ing clause of the statute of limitations of Virginia applied to the locality of the plaintiff2 The same principle was applied where a foreign corporation had a known place of business and an authorized agent within the state, as required by law, upon whom process might be served.3 § 115. Benefit of Exception extended to Foreigners. — The penefit of the statute exception in favor of absent plaintiffs is not confined to subjects who may leave the country but ex- tends to foreigners. Thus it was held that the statute of James only began to run against a plaintiff foreigner from the time of his coming to England, so that he would be enti- tled to six years from the time of his coming, within which to bring his action. And if he never should go to England, he would have always a right of action, even after six years have elapsed.5 But if one of several plaintiffs be abroad, and the other in England, the action must be brought within six 1 Dig. c. 91, § 18; Clark v. Bank of Mississippi, 5 Eng. 516. 2 Bank of the United States v. McKenzie, 2 Brock. (C. C.) 393. ® Huss v. Central Railroad & Banking Co. 66 Ala. 472. If there is a continuous liability, the residence or domicil of the party is immaterial. Express Co. v. Ware, 20 Wall. 543. 4 Strithorst v. Greme, 3 Wils. 145, s. c. 2 Wm. Bl. 793. In this case the court say: “If the plaintiff is a foreigner, and doth not come to Eng- land in fifty years, he still hath six years after his coming to England to bring his action; and if he never comes to England himself, he has always aright of action while he lives abroad, and so have his executors and administrators after his death.’’? See also LeVeux v. Berkeley, 5 Ad. & El. 386; Williams v. Jones, 13 East, 439. 5 Chandler v. Villett, 2 Saund. 121. 170 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. years after the cause of action accrues.1 The same rule of construction is generally adopted in those American states in which the statutory exception in favor of absent plaintiffs exists.? ee § 116. Exception in case of Absent Defendants. — The stat- ute of James I. contained no exception in favor of the rights of creditors in cases where the debtor was beyond the seas, although it was several times attempted to create such an exception by construction. But by the statute 4 Anne, c. 16, § 19, it was provided that if any person against whom any action lies for seamen’s wages, trespass, detinue, trover, re- plevin, action of account, or upon the case, or such other actions as are mentioned in the third section of the statute of James, be beyond sea at the time when such action accrued, the plaintiff shall be at liberty to bring his action. against him within the same time after his return as is limited for such action by the statute of James. And this exception ob- tains in most, if not all, of the United States.? It is held in Missouri that if the debtor against whom the cause of action has accrued in his absence, comes within the jurisdiction of the state, even temporarily, and afterwards departs and re- 1 Perry v. Jackson, 4 T, R. 516. The principle is that if one of sev- eral joint plaintiffs be capable of suing when the cause of action accrues, the limitation runs against all. Jordan v. McKenzie, 30 Miss. 32; Masters v. Dunn, id. 264; Parker v. Hall, 2 Head (Tenn.), 641. But see, contra, Harlan v. Seaton, 18 B. Mon. 312; Seay v. Bacon, 4 Sneed (Tenn.), 99. 2 Hall v. Little, 14 Mass. 203; Wilson v. Appleton, 17 id. 180; Bulger v. Roche, 13 Pick. 36; Von Hemert v. Porter, 11 Met. 210; Wakefield v. Smart, 8 Eng. (Ark.) 488 (the exception in favor of absent plaintiffs is now repealed in Massachusetts and Arkansas. See § 112, ante); Painev. Drew, 44 N. H. 806; McMillan v. Wood, 29 Me. 217; Ruggles v. Keeler, 3 Johns. 261; Chomqua v. Mason, 1 Gall. (C. C.) 342; Erskine v. Mes- sicar, 27 Mich. 84. 3 It was held in Maryland that the acts of limitation of 1715 and 1765 were in construction to be taken together, and to receive an interpretation to carryinto effect the plain and obvious intent of the legislature, which was that the limitations should not attach against a creditor where the debtor was absent from the state at the time the cause of action accrued, Hysinger v. Baltzell, 3 Gill & J. 158. SEC. II. ] DISABILITIES IN PERSONAL ACTIONS. 171 sides in a foreign jurisdiction, the running of the statute is suspended.1 The exception obtains when the debtor leaves the state with the purpose of never returning? It is held that the absence beyond the jurisdiction of one of several contractors against whom there is a joint cause of action, sus- pends the running of the limitation as to the absent debtor, although the co-debtors remain within the state.? § 117. What constitutes a Return by Defendant to avoid the Exception. — The word “return,” as applied to an absent debtor, is construed to intend the coming into the state of persons domiciled abroad, as well as the return of citizens of the state going abroad and then returning. Thus it was held, where a debt was contracted in a foreign country between subjects thereof, who remained there until the debt became barred by the statute of limitations of such country, that the statute of limitations could not be pleaded in bar to an action upon the debt brought in Massachusetts within six years after the parties came into that state.® The return 1 Whittlesey v. Robert, 51 Mo. 120; Cook v. Holmes, 29 id. 61; Wag. St. 919, § 16. 2 Ayres v. Henderson, 9 Tex. 539. 8 Fannin v. Anderson, 7 Q. B. 811; Townes v. Mead, 29 Eng. L. & E. 271; Denny v. Smith, 18 N. Y. 567 (overruling Brown v. Delafield, 1 Denio, 445); and see Cutler v. Wright, 22 N. Y. 472; Bogart v. Ver- milya, 10 id. 447. In New Jersey the rule is held otherwise. Bruce v. Flagg, 25 N. J. L. 219. 4 Ruggles v. Keeler, 3 Johns. 261; Crocker v. Arey, 3 R. I. 178; State Bank »v. Sidwell, 18 Ala. 616; Palmer v, Shaw, 16 Cal. 93. For a case in which very slight evidence of a return was submitted to the jury in support of the plaintiff’s replication, see Koch v. Shepherd, 18 C. B. 191. 5 Bulger v. Roche, 11 Pick. 36. In Massachusetts, Pub. Sts. c. 197, § 11, the time of the debtor’s absence is not to be taken as a part of the time limited for the commencement of the action, provided that no action shall be brought by any person whose cause of action has been barred by the laws of any state, territory, or country, while he has resided therein. See Milton v. Babson, 6 Allen, 22. Formerly in the same state, St. 1786, c. 52, § 4, in order to avoid the exception of being out of the Common- wealth, the defendant was bound to show that the creditor knew of his coming into the Commonwealth, or of his having attachable property therein, so as to have had an opportunity to arrest him or make an at- ' ‘tachment. It was held that the provision of the present statute, as cited 172 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. must not, in order to avoid the exception, be clandestine, with intent to defraud the creditor by setting the statute in motion and then departing. It must be under such circumstances as to give the creditor an opportunity, by the use of ordinary diligence, of arresting the debtor.! So a person who has a domicil and actual residence in another state, and only comes into the state of the creditor’s residence occasionally, or even for a few hours daily, is absent from and resides out of the state, and the statute limitation does not run in his favor. But where the debtor, having been a resident of the state, and not having had a domicil elsewhere, was brought into the state upon a criminal warrant, and there imprisoned during the whole of the limited time, it was held that the limitation ran in his favor during the time of his imprisonment.’ So it is held that a return for a temporary purpose may do away with the exception of absence, if such return be open and public, and under such circumstances that the creditor may, by the use of ordinary diligence, take advantage of it.4 above, Pub. Sts. c. 197, § 11 (first enacted in Rev. Sts. 1836, c. 120, § 9), did not apply to actions already barred by the statute of 1786. Wright v. Oakley, 5 Met. 400, 410. But if the right of action was not then barred, it does apply. Darling v. Wells, Mooar v. Bates, 1 Cush. 508; Wil- lard v. Clarke, 7 Met. 4385; Brigham v. Bigelow, 12 id. 268; Seymour v. Deming, 9 Cush. 527. In New Hampshire, the statute of limitations is no bar to an action where the defendant has not, since the action accrued, resided within the state, unless he has had attachable property within the state during the full uninterrupted term of six years. Dow v. Say- ward, 14 N. H. 9; Howard v. Fletcher, 59 id. 151. So in Vermont. Hill v. Bellows, 15 Vt. 727; Wheeler v. Brewer, 26 id. 113. 1 White v. Bailey, 3 Mass. 273; Byrne v. Crowninshield, 1 Pick. 263; Fowler v. Hunt, 10 Johns. 464. But it is not necessary that the creditor should actually have known of the debtor’s return, if he might have known it by the use of reasonable diligence. Davis v. Field, 56 Vt. 426; Whitton v. Wass, 109 Mass. 40. 2 Burroughs v. Bloomer, 5 Denio, 532; Milton v. Babson, 6 Allen, 322; Rockwood v. Whiting, 118 Mass. 337. 3 Turner v. Shearer, 6 Gray, 427. 4 Faw v. Roberdeau, 3 Cranch, 174; Hysinger v. Baltzell, 3 Gill & J. 158; Hill v. Bellows, 15 Vt. 727; Didier ». Davison, 2 Sandf. Ch. 61; Dorr v. Swartwout, 1 Blatch. (C. C.) 179; Ford v. Babcock, 2 Sandf. Sup. Ct. 518; Cole v. Jessup, 2 Barb. 309; Didier v. Davison, 2 Barb. Ch. 477. Where the defendant was in the state two or three days on SEC. III.] DISABILITIES IN REAL ACTIONS. 173 SECTION III. OF DISABILITIES IN REAL ACTIONS. § 118. Provision of the English Statute in Regard to.— The same general principles are applied to the construction of the statutory exceptions of disability in real, as in personal, actions. business, and was publicly in the principal streets, and transacted busi- ness at a store directly opposite the plaintiff’s, this was held a suffi- cient return to set the statute in motion. Randall v. Wilkins, 4 Denio, 577. Where the debtor, at the time the cause of action accrued, was re- siding out of the state, proof that since that time he had often been a few miles within the limits of the state,,on business, with personal property which might have been attached, but without any proof that the plaintiff had knowledge of it, does not show such a return as will set the statute running. Crosby v. Wyatt, 23 Me. 156. In Vermont, where both parties reside out of the state, and the claim is barred by the statute of the state in which they both reside, if the defendant be temporarily within the state, it is a return, and the plaintiff may sue. Graves v. Weeks, 19 Vt.178. But see Hale v. Lawrence, 1 N. J. 714, where it was held (McCarter, J., dissenting) that the action would not lie, having been barred by the statute of the state where it accrued. In Alabama, it is held that the debtor must have resided six years in the state after his return, in order that he may avail himself of the exception in the statute; and, if there have been repeated absences, six years after the first return, deducting the time of the absences. Smith v. Bond, 8 Ala. 886. So in Illinois. Chenot v. Lefevre, 3 Gilm. 637. And in New York. Burroughs v. Bloomer, 5 Denio, 532; Ford v. Babcock, 2 Sandf. Sup. Ct. 518. But see, contra, Dorr v. Swartwout, 1 Blatch. (C. C.) 179; Rich- ardson v. Curtis, 3 id. 385; Berrien v. Wright, 26 Barb. 208; Harden v. Palmer, 2 E. D. Smith, 172; Campbell v. White, 22 Mich. 178. In Maine, the disability to sue, arising from absence from the United States, is removed by a return to any one of the states. Varney v. Grows, 37 Me. 306. In Mississippi, where the statute is set in motion by the first return, it runs without deduction for subsequent absences. Ingraham v. Bowie, 33 Miss. 17. In Missouri, it has been held that the concealment of the debtor’s return which prevents the running of the statute need not be fraudulent, but that a change of residence several times by the debtor, without informing his creditor, is a concealment within the mean- ing of the statute. Harper v. Pope, 9 Mo. 402. A debtor who has been absent longer than the period of statutory limitation, may, in an action against him on his return, avail himself of a set-off. Hewlett v. Hewlett, 4 Edw. Ch. 7. It seems that, in Nebraska, the time of the debtor’s ab- 174 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. It was provided, by the statute of 21 James I. c. 16, § 2, “ that if any person, or persons, that is or shall be entitled to such writ or writs [that is, to the real actions enumerated in § 1], or that hath or shall have such right or title of entry, be, or shall be, at the time the said right or title first descended, accrued, come, or fallen within the age of one-and-twenty years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action, or make his entry, as he might have done before this act; so as such person and per- sons, or his or their heir and heirs, shall, within ten years after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of, and sue forth the same, and at no time after the said ten years.”! By the statute of 3 and 4 Wm. IV. c. 27, § 16, persons under the disability of infancy, lunacy, sence with the intention of returning is not to be deducted in computing the statute period of limitation. Thomas v. Brewer, 55 Iowa, 227. 1 The statute of limitations of Pennsylvania fixes the limitation of twenty-one years in real actions, and provides that if any person or per- sons having right of entry or title be, or shall be, under disability at the time such right or title first descended or accrued, then such person or persons, and the heir or heirs of such person or persons shall and may, notwithstanding the said twenty-one years be expired, bring his or their action, or make his or their entry, within ten years after the disability is removed. The defendant in error was born in 1791, and was twenty-one years of age in 1812. An interest in the property, for which the eject- ment was brought, descended to her in 1779. The title of the plaintiff in error commenéed on April 13, 1805, under deeds adverse to the title of the defendant in error and of all others holding possession of the prop- erty under the same. On April 18, 1826, the twenty-one years prescribed by the statute in which to assert a right of entry against her possession, expired ; and the bar was held to be complete at that time, as more than ten years had run from the time the defendant in error became of full age, the suit not being commenced till May, 1830. Gregg v. Sayre, 8 Peters, 244. In Connecticut the right of the wife in her land is not barred by an adverse possession of fifteen years (the time prescribed by the statute of that state), during the coverture, but is saved by the pro- viso of the statute; and therefore an action of ejectment in the name of the husband and wife may be restrained, notwithstanding such adverse possession, Watson v. Watson, 10 Conn. 77. SEC. III. ] DISABILITIES IN REAL ACTIONS. 175 coverture, or beyond seas, and their representatives, are to be allowed ten years after the removal of their disability, or death, within which to enforce their rights. But it is provided by § 17, that even though a person be under a disability when his claim first accrues, he must enforce it within forty years after the right has first accrued, even though the disability continue during the whole of such period ; and under § 18, no further time is to be allowed, although there be a succes- sion of disabilities. § 119. Exception only in Favor of Person having the Original Right: New Disabilities. —As the saving clause in the stat- utes extends only to the person to whom the right of entry, or title, first descends, when the statute has once begun to run it will continue to run, without being suspended by any disability subsequently arising. And the principle is the same when a disability existing at the time the right accrued is re- moved and a new disability afterwards arises, the statute in such cases beginning to run when the former disability is re- moved, and continuing to run notwithstanding the occurrence of the new disability.2 Thus if an adverse possession begin in the lifetime of the ancestor, he not being under disability, it will continue to run against the heir, although the latter be under disability when his own right acerues;? as where the 1 See Lewis v. Barksdale, 2 Brock. (C. C.) 486; McFarland v. Stone, 17 Vt. 165; Guion v. Anderson, 8 Humph. (Tenn.) 298. 2 The rule is the same both in real and personal actions. See §§ 108, 109, ante, notes and cases cited; and also Mercer v. Selden, 1 How. 37; Doe v. Jones, 4 T. R. 301; Jackson v. Cairns, 20 Johns, 301; Same v. Wheat, 18 id. 40; Bailey v. Jackson, 16 id. 210; Jackson v. Robins, 15 id. 169; Demarest v. Wynkoop, 3 Johns. Ch. 129; Jackson v. Moore, 13 Johns. 513; Mooers v. White, 6 Johns. Ch. 372; Hall v. Vandegrift, 3 Binn. 374; Walden v. Gratz, 1 Wheat. 292; Halsey v. Beach, 1 Pa. 122; Peck v. Randall, 1 Johns. 165; Fitzhugh v. Anderson, 2 Hen. & Mun. 289; Dow v. Warren, 6 Mass. 328; Pearce v. House, Tayl. Term R. (N. C.) 305; Richardson v. Whitfield, 2 M’Cord, 148; Adamson »v. Smith, 2 Mills Const. R. (S. C.) 269; Carlisle v. Stitler, 1 Pa. 6; Rankin v. Ten- brook, 6 Watts, 388; ‘Thompson v. Smith, 7 8. & R. 209; Parson v. McCracken, 9 Leigh, 495. 3 Fleming v. Griswold, 3 Hill, 85; Becker v. Van Valkenburgh, 29 Barb. 319. 176 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. ancestor brought an ejectment, within the period of limitation, which was abated by his death, he leaving an infant heir who brought another action upon his coming of age, which action was held to be barred, the period of limitation, reckoned from the accruing of the ancestor’s right, having expired.t The statutory limitation begins to run against an insane per- son who has made a conveyance of his estate, void or void- able by reason of his insanity, when he is restored to sanity and has knowledge of his deed.? It is said that the course of decisions, both in England and in this country, has estab- lished the rule that where the statute of limitations has com- menced running, it runs over all subsequent disabilities, and intermediate acts and events.3 § 120. Rule as to Voluntary and Involuntary Disabilities. — There is no distinction in the application of this rule as be- tween voluntary and involuntary disabilities.* It being con- tended that an involuntary disability, as insanity, occurring after the statute had begun to run, should suspend its prog- ress, Lord Kenyon was of opinion, on the construction of the statute of fines and of all the statutes of limitation down to that time, that the distinction contended for had never been admitted and that it would be mischievous to refine and make nice distinctions between voluntary and involuntary dis- abilities.2 And the rule was applied where it appeared that the 1 Pearce v. House, Tayl. Term R. (N. C.) 305. A devised slaves to his daughter’s children, and died in 1819. The slaves were sold by the daughter’s husband to Bin 1821. The daughter died in 1845, and her children brought an action of trover against B in 1846, to recover the value of the slaves. It was held that if the assent of the executors of A’s will was obtained in 1819, the title of B was good by adverse possession; and that if such assent was not given till 1845, the executors were barred by B’s possession; and that the case was not excepted by the infancy of the plaintiffs, who came of age in 1839, as the exception only availed those who had an original cause of action, which a legatee has not. Bennett v. Williamson, 8 Ired. 121. . 2 Crowther v. Rowlandson, 27 Cal. 384; Dicken v. Johnson, 7 Ga. 484. See Buswell, Law of Insanity, § 147 and cases cited. 8 Per Hornblower, C. J.,in Dekay v. Darrah, 2 J. S. Green (N. J.), 294. 4 Frewell v. Collins, 3 Brev. (S. C.) 286; and see §§ 109, 110, ante. 5 Doe v. Jones, 4 T. R. 301. SEC. III.] DISABILITIES IN REAL ACTIONS. 177 person under whom the lessors of the plaintiff claimed and to bar whom a fine was set up, was of sound mind when the fine was levied, but became insane two years afterwards.) So in Massachusetts it is held that if an owner of land has been disseised, his subsequent insanity does not prevent the disseisor’s title from maturing by twenty years’ adverse possession.? § 121. Cumulative Disabilities not within the Exception: Statute strictly construed. — It has been contended that if a right first accrue to a person then under disability, the statute will not begin to run against him till he shall be free from disability ; and that successive disabilities, without inter- mission, will continue to prevent the running of the statute. That is, if the successive disabilities are in the same person on whom the right first descended, he may enter within the time given by the statute after the removal of the last disability. But Parsons, OC. J., thought that this construction of the law would defeat the operation of the enacting clause, which relates only to disabilities existing “‘at the time” the right accrued. In this case the plaintiff was an infant, and before the termi- nation of her infancy the disability of coverture attached; but_the court held that, the latter disability not existing when the right first accrued, the party was bound to have brought her writ within the time limited after the first disability ceased.2 A similar decision was made in Connecticut, in a case where a female heir was under age when the title de- scended to her, and married before she arrived at the age of twenty-one years. It was decided that she could take ad- vantage of the saving clause of the statute in favor of infancy only, and that she was not protected during coverture with a right to bring her action at the end of the time limited after she became discovert.t So, in a case in New York, where a 1 Doe v. Shane, 4 T. R. 308, note. 2 Allis v. Moore, 2 Allen, 306. 8 Eager v. The Commonwealth, 4 Mass. 182. 4 Bunce v. Wolcott, 2 Conn. 27. And see Bush v. Bradley, 4 Day, 298; Griswold v. Butler, 3 Conn. 227; Dugan v. Gittings, 3 Gill (Md.), 138, 12 178 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. title accrued to a female infant, who afterwards married, it was held by Kent, C., that she must commence her ejectment within ten years after coming of age, provided twenty years had elapsed after the death of the person last seised. In this case, the Chancellor reviewed the principal authorities on the subject and adhered to the doctrine that cumulative disabilities are not within the policy and sound construction of the statute. He considered that the notion of an inherent equity creating an exception as to any disability, where the statute creates none, had long been exploded, that general words in the statute must receive a general construction, and that, if there be no express exception, the court cannot create one.1 § 122. Construction of the word “Death”—The word “death” in the saving clause of -the statute of limitations, 21 James I. c. 167 is held to refer to the death of the person to whom the right of action or entry first accrued. The court in an early case, observed that if any other construction were adopted there would be no calculating how far the operation of the statute might be carried in the case of parents and children dying under age; that the statutory exception was probably introduced in order to obviate the difficulty which had arisen in the case of Stowel v. Zouch® upon the construction of the statute of fines, from the omission of the word “ death;” and that the statute intended that the heir of a person, to whom a right of entry had accrued during the existence of any of the disabilities enumerated, should have ten years from the death of the ancestor, to whom the right first accrued during the period of disability, within which to pursue his action or 1 Demarest v. Wynkoop, 3 Johns. Ch. 129. See also Duplex v. De Roven, 2 Vern. 540; Beckford v. Wade, 17 Ves, 87; Hall v. Wybourn, 2 Salk. 420; § 109, ante, and cases there cited. 2 The act, § 2, provides that the person under disability, or his heirs, shall have a right of action or entry, if they shall, ‘within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said ten years.’ And see Statute 3 & 4 Wm. IV. c. 21, § 14, Appendix. 8 Plowd. 333. SEC. III.] DISABILITIES IN REAL ACTIONS. 179 right of entry, notwithstanding the twenty years from the first accruing of the title to the ancestor should have expired. § 128. Coexisting Disabilities. — If two or more disabilities, such as infancy and insanity, exist together in the legal owner of the estate when the adverse possession begins to 1 Doe v. Jesson, 6 East, 80. It was held by Lord Mansfield, contrary to the rule stated in the text, that if a right of entry accrued to a feme covert, and she died, leaving her heir within age, the statute did not begin to run until after the disability of the heir had ceased. In this case the tenant in tail died, leaving issue in tail, a granddaughter, a feme covert; the granddaughter died covert, leaving issue in tail, two sons, infants; the elder son attained the age of twenty-one, and died; the younger attained the age of twenty-one, but did not issue his writ of formedon until fourteen years after, and was therefore barred even by Lord Mansfield’s construction. Cotterell ». Dutton, 4 Taunt. 826. A similar ground was once taken by the Supreme Court of Con- necticut, in a case which was subsequently overruled. The facts of the case were as follows: A was seised of real estate and died, leaving B an infant and feme covert, who died before her husband, in 1755, leaving C, an infant daughter, who was mafried during infancy to D. In an action by D and C for the estate, commenced in 1804, against E, who had been in possession holding adversely nearly sixty years, it was held that the claim of the plaintiff to possession was not barred. Eaton v. Sanford, 2 Day, 523. The opinion of Lord Mansfield in Cotterell v. Dut- ton, supra, is contrary to that expressed by Sheppard, Touchstone, p. 31, who, speaking of fines, says, if the ancestor being abroad at the time of levying the fine do not return, but die out of the realm, the heir must claim within five years from the time his title as heir accrues, notwith- standing any disability, for the right did not first accrue to him, but to his ancestor; and again, if women covert die under coverture, their heirs shall be allowed five years; but no disability in them or in their heirs shall protract the bar beyond five years from the death of the ancestor dying under a disability. Preston, 2 Abstracts of Title, p. 341, concurs in this opinion of Sheppard, and says that successive owners under the same estate cannot protect themselves fromi asserting their claim, on account of successive disabilities; but every claim must be barred by the opera- tion of the fine with proclamations, unless it shall be asserted during the life of the person to whom the right of entry or of action first accrues, or within five years of his death, whatever may be the state of the right- ful owner in respect of disabilities. See also the same doctrine appar- ently recognized in 8 Co. Litt., by Thomas, p. 18, n.1. In Ohio, the heirs of a non-resident are barred by an adverse possession of land for twenty years, during the lifetime of the ancestor. Lewis v. Baird, 3 McLean (C. C.) 56. 180 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. run as against him, he, or in case of his death, his heirs, may under the statute, enter or bring action within ten years after both disabilities are removed.1_ Thus if a female infant having a right of action marries before coming of full age, she is not bound to sue within the time prescribed, after coming to full age; but her coverture protects her.2 And in all cases the owner, or his heirs, is entitled to the full period of twenty years reckoned from the time when the adverse possession began, within which to assert his right. § 124. Application of the Exception as to Time. —It may happen that the twenty years and more will elapse during the disability, and then ten years will be afterwards allowed cumu- latively ; or the disability may cease so far within the period of the twenty years as to allow of only twenty years in the whole, though part of that period be covered by the disability. This construction does not allow to persons laboring under disability the same number of years after they become of competent ability, as it allows to other persons who were under no such disability. To this effect is the policy and language of the statute; for it did not mean, as in the case of the limitation of personal actions, that the party should, at all events, be allowed the full period of twenty years after the disability had ceased; because the words of the act are explicit, that extension of the time of making the entry beyond the twenty years, is in no case to exceed ten years after the disability is removed.? In a later case, in New York, the court considered it as clear, from the words and policy of the statute and the repeated expositions of it, that if twenty years have elapsed since the right of action first accrued, and during ten years the owner has been free from disability, the right of entry is barred; that is, the party is not entitled to twenty years after the disability ceases, in which to bring his action, but to ten years only, provided 1 See § 110, ante. 2 Davis v. Cooke, 3 Hawks (N. C.), 608. 8 Opinion of Kent, C., in Demarest v. Wynkoop, 3 Johns. Ch. 129, and see dicta in Smith v. Burtis, 9 Johns. 174. BEC. III. ] DISABILITIES IN REAL ACTIONS. 181 that, at the expiration of the ten years, twenty years have elapsed since the right of entry accrued.! § 125. Rights of Reversioner preserved. — The application of the general rule that the right of entry or action of a remainder-man or reversioner cannot be affected by the stat- ute of limitations during the existence of the particular estate? will operate, in some cases, to preserve the remedy of persons under disability, when otherwise it would be lost. Thus, as to the grandchildren of one who had died seised before the beginning of the adverse possession, leaving the lands in question to his daughter, a married woman and mother of the plaintiff, who died leaving the lands in the possession of her husband as tenant by the curtesy, it was held that the right of recovery in ejectment by the grand- children was not barred for ten years after the termination of the tenancy by the curtesy, although but for the inter- vention of the particular estate the limitation would have been effectual.2 An adverse possession commenced in 1772, A being then tenant by the curtesy, with reversion in his daughter, an infant. The daughter married in 1783; the tenant by the curtesy died in 1784, and the husband in 1807; his widow, the daughter of the tenant by the curt- esy, being the lessor of the plaintiff. Thus, when the adverse possession commenced, the only disability which existed, independent of the estate by the curtesy, was the infancy of the lessor, whose coverture, as has been stated, did not com- mence until 1788. It was contended that the lessor, being of full age when the particular estate terminated in 1784, and having then a right of entry, was bound to enforce it and could not avail herself of her coverture, this being a second or cumulative disability. But the court held that during the particular estate no right of entry had descended to the lessor, and that therefore the statute did not begin to run till the death of tenant by the curtesy, and that the coverture was an effectual disability.* 1 Jackson v. Johnson, 5 Cowen, 74; and see Willson v. Betts, 4 Denio, 201. 2 See § 271, post. 8 Moore v. Jackson, 4 Wend. 58. 4 Jackson v, Sellick, 8 Johns. 262; and see Jackson v. Johnson, 5 182 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. § 126. Rights of Cotenants. — Where an adverse possession has existed during the period of limitation against tenants in common, one of whom is within the saving clause of the statute, the rights of the others are not thereby saved! And so it seems that if an estate descend to parceners, one of whom is under a disability which continues for more than twenty years, and the other does not enter within the twenty years, the disability of the one does not preserve the title of the other. It was held by Story, J., in an action of tres- Cowen, 74; Jackson v. Schoonmaker, 4 Johns. 390; Wilson v. Kilcannon, 4 Hay (Tenn.), 182; Coleson v. Blanton, 3 id. 152. 1 Roe v. Rowlston, 2 Taunt. 441. See Jackson v. Bradt, 2 Caines, 169; Riggs v. Dooley, 7 B. Mon. 235; Moore v. Armstrong, 10 Ohio, 11; Bron- son v. Adams, id. 1385; Wade v. Johnson, 5 Humph. (Tenn.) 117; Wood- ward v. Clarke, 4 Strobh. (S. C.) Eq. 167; Jordan v, Thornton, 7 Ga. 517; Pendergrast v. Gullatt, 10 Ga. 218; Bombarger v. Morrow, 61 Tex. 417. Butin Meese v. Keefe, 10 Ohio, 862, and Lockwood v. Wildman, 13 Ohio, 480, a different doctrine seems to be held. See also Culler v. Motzer, 18 S. & R. 356. A coparcener may bring ejectment on his separate demise. Jackson v. Sample, 1 Johns. Cas. 231. It was held, in South Carolina, that the infancy of one of several persons, having a joint interest in land, will protect the rights of those who are of full age, from the operation of the statute. Lahiffe v. Smart, 1 Bail. 192. But Nott, J., said: ‘‘ The correctness of the rule may be questionable; but this court does not feel at liberty to innovate on a rule of law which has long been regarded as settled, and has been acted upon for a great length of time. I do not know that our courts have permitted the rights of cotenants to be saved by any other disability than that of infancy. The question in relation to other cases is still open for consideration.’ This rule is still adhered to, however, in South Carolina. Thomson v. Gaillard, 3 Rich. 418; and also, it seems, in Kentucky. Harlan v. Seaton, 18 B. Mon. 312. In Tennessee it is held that if several persons be heirs, and one of them a feme covert at the time when the adverse possession commences, and so continues until the time of bringing the action by the plaintiff, her disability will not prevent the bar as to the others under no disabilities. For each tenant in common, as heir, by the statute in that state, may sue for his own share, notwithstanding the feme may not be joined. Johnson v. Harris, 5 Hayw. (Tenn.) 118. So in New York. Carpenter v. Schermerhorn, 2 Barb. Ch.314. In Connecticut it has been held, that an adverse possession against two tenants in common, one of whom is within the saving clause of the statute, operates against the other; and so with coparceners. Doolittle v. Blakesley, 4 Day, 265; Sandford »v. Button, id. 810. And see also Wells v. Ragland, 1 Swan (Tenn.), 501; Baker v. Grundy, 1 Duvall (Ky.), 281. SEC.IV.]. | EXCEPTIONS ARISING FROM NECESSITY. 183 pass brought by several plaintiff cotenants, in which the disability of some of the plaintiffs was relied on in favor of all, that when the statute runs against one of two parties entitled to a joint action, it operates as a bar to such joint action. So in the case of legatees invested with a right to recover a debt due the testator’s estate, it is held that such right arises upon the testator’s death, and the fact that some of the legatees are under disability, as by war, does not pre- vent the statutory bar from applying to them all at the same time.2 It follows in the case of joint-tenancy, that where parties plaintiff are compelled to join the disability of one of them will afford no advantage to the others, unless the party under disability shall sue alone, in an action of ejectment, and his demise to the lessee be construed as a sev- erance of the joint estate and as a conversion of it into an estate in common. Where there were several coheirs, lessors of the plaintiff in an action of ejectment, and joint and sev- eral demises were laid in the declaration, and one of the co- heirs not under disability failed to bring his action within the time limited by law, it was held, though his right to recovery would be barred by the act, that this would not affect his coheirs who were under disability, since the proviso in the act is personal, and applies to all those who labor under any of the enumerated disabilities.* SECTION IV. EXCEPTIONS ARISING FROM NECESSITY. § 127. Formerly not admitted. —It has already been shown that the statutes, of limitations are to be construed strictly, and that, although there have been cases in which this rule 1 Marsteller v. M’Clean, 7 Cranch, 156; and see Perry v. Jackson, 4 T. R. 416; Dickey v. Armstrong, 1 A. K. Marsh. 89; Simpson v. Shan- non, 8 id. 562; Turner v. Debell, 2 id. 384; Johnson v. Harris, 5 Hayw. (Tenn.) 118; Thomas v. Machir, 4 Bibb, 412; Riden v. Frion, 8 Murph. (N. C.) 577. 2 Traweek v. Kelly, 60 Miss. 662. 3 Lewis v. Barksdale, 2 Brock. (C. C.) 436. 184 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. has been departed from, these have failed to establish a con- trary precedent.1 Chancellor Kent maintained that it would be not only impolitic, but contrary to established rule, both in law and equity, to depart from the plain meaning and literal expression of the statutes.2 It has been shown that the cases generally excepted in the acts of limitation could not be so excepted by judicial construction. In the case of de- fendants absent from the realm, before the enactment of the statute of Queen Anne,! it was attempted in vain upon general reasoning to introduce an exception in favor of the plaintiff. So in a case where the plaintifi’s claim to be exempted from the operation of the statute was founded solely on the im- -pediments which had existed to prevent the assertion of his title, the court said, that, “ wherever the situation of a party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception: and that it would be going too far for the court to add to those exceptions.” It had never been determined, said Chief Justice Marshall, “that the impossibility of bringing a case to a successful issue, from causes of uncertain duration, though created by the legislature, shall take a case out of the operation of the act of limitations, unless the legislature shall so declare it.”® 1 See § 16, ante, and note. 2 Demarest v. Wynkoop, 3 Johns. Ch. 129, 8 See §§ 104, 116, ante. 4 See § 116, anie. 5 Beckford v. Wade, 17 Ves. 87. ® McIver v. Ragan, 2 Wheat. 25. So it was held that a discharge un- der an insolvent law does not take from the debtor the protection which is afforded by the statute, by virtue of the equity of the exception of be- ing ‘‘ beyond seas,” or ‘‘out of the state;’’ although the reason why such absence of a defendant excuses the plaintiff from prosecuting is, that he cannot be reached by a process of the courts. And such still seems to be the rule, for the case cannot be considered as falling within the class of exceptions not contemplated by the legislature. See §§ 104, 128; Browning v. Paris, 5M. & W. 117; Sletor v. Oram, 1 Whart. 106; Shoenberger v. Adams, 4 Watts, 480. A.B. made his promissory note April 7, 1812, in favor of C. D., who indorsed it to E. F. An act of assembly was passed in Pennsylvania, March 18, 1812, which was, in fact, a bankrupt law. On March 31, 1817, the Supreme Court of Pennsyl- vania held that the said act was constitutional, and a discharge under it SEC. IV.] EXCEPTIONS ARISING FROM NECESSITY. 185 It was even considered that when the courts of justice were closed in time of war so that no process could be instituted, the statute limitation would continue to run, for the reason that the statute is general and must affect all cases which are not specially exempted. This resolution, it is said, was approved by Lord Chief Justice Holt.? § 128. Arise from Invincible and Unforeseen Necessity: When the Courts are shut.— But the tendency of the modern law is to create judicial exceptions to the operation of the statute, in cases where the creditor is estopped from pursuing his remedy ex necessitate rei, and under circumstances which could not have been contemplated by the legislature. Al- though this doctrine has been more broadly applied in mod- ern times, it is of ancient origin. It was the opinion of Plowden that things happening by an invincible necessity, though they be against the common law or an act of Parlia- ment, should not be prejudicial; and that to say that the courts were shut was a good excuse on voucher of record? a bar to arecovery. Farmer’s Bank v. Smith, 3 S. & R. 63. The case on which this decision was made was removed to the Supreme Court of the United States, and there reversed, February 18, 1821. 6 Wheat. 131. More than six years after the cause of action arose on the note, E. F. brought an action on it against A. B.; and the following question was submitted to the court: ‘‘ Did the act of limitations run against the plaintiff while the act of 13th March, 1812, was held by the Supreme Court of Pennsylvania to be constitutional?’’ It was held by that court, that these circumstances did not stop the running of the statute. Hud- son v. Carey, 11S. & R. 10. 1 Hall v. Wybourn, 2 Salk. 420; Aubry v. Fortescue, 10 Mod. 206. 2 See Beckford v. Wade, 17 Ves. 38, 87. This view of the law was recognized in the act of 1 William and Mary, by which it was provided that the period from the 10th of December, 1688, when King James de- parted, until the 12th of March, 1689, when King William assumed the government, should not be accounted any part of the time within which any person, by virtue of the statute of limitations, might bring his action. See Snode v. Ward, 3 Lev. 283. The treaty of peace of 1783, between Great Britain and the United States, prevented the operation of the statute upon British debts contracted before that time. See Hopekirk v. Bell, 3 Cranch, 454; Ogden v. Blackledge, 2 id. 411; Sleght v, Kane, 1 Johns. Cas. 76; Higginson v. Air, 1 De Sauss. 427. 8 Plowd. 9 b. 186 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. Such an extraordinary state of things is certainly not to be foreseen, and therefore is not to be considered as contem- plated by the legislature; and so the legislature, in limiting a period for the commencement of suits, could not have in- tended that a subject should be deprived of the rights which belonged to him before it occurred. Sir Edward Coke says: “Tn times of domestic. war, when the courts of justice are shut, a descent shall not take away an entry, though the dis- seisin was in times of peace; for, if it did, the disseisee would be without all remedy, there being no courts open for him to bring his action in.’’! § 129. Disability arising from State of War. — It may be stated to be a settled rule of modern jurisprudence that the operation of the statutes of limitation is suspended during a state of war as to matters in controversy between citizens of the opposing belligerents, although the limitation may have begun to run before the commencement of the war ;2 and the exception has been adopted and applied by the courts as being within the spirit, even when not within the letter, of the statute. But it does not extend to cases where the en- forcement of rights in the courts is not prevented as against the enemy or those in the hostile territory. The general 1 Co. Litt. 249 a. See § 129. 2 Brown v. United States, 8 Cranch, 110; Hanger v. Abbott, 6 Wall. 532; Ware v. Hilton, 3 Dall. 199; Boussmaker, Ex parte, 18 Ves. 71; Furtado v. Rogers, 3 Bos. & P. 191. A condition in an insurance con- tract that no action shall be maintainable thereon unless begun within twelve months next after a loss does not operate, in case of war, like a statute of limitations. The term does not open and expand to receive within it the term of disability created by the war. But the disability to sue created by the war does relieve the plaintiff from the conse- quences of his failing to bring suit within twelve months after loss, Semmes v. Hartford Ins. Co., 13 Wall. 158. 8 Hanger v. Abbott, supra. * Thus an alien enemy may be sued, even when within the hostile lines. Masterton v. Howard, 18 Wall. 99; McNair v. Toler, 21 Minn. 175. He is usually bound by notice by publication, like other non-residents, University v. Finch, 18 Wall. 106; Lee v. Rogers, 2 Sawyer (C. C.), 549; Seymour v. Bailey, 66 Ill. 288; Selden v. Preston, 11 Bush, 191. And in a suit against him, he cannot set up in defence his character as an enemy. Dorsey v. Kyle, 30 Md. 512; Herbert v. Rowles, id. 271. SEC. IV. ]} EXCEPTIONS ARISING FROM NECESSITY. 187 doctrine rests upon the principle that debts previously con- tracted between the respective subjects of the belligerents, though the remedy for their recovery is suspended during the war, are revived on the restoration of peace, unless actually confiscated, meantime, in the exercise of the strict rights of war, contrary to the milder rules of recent times. This power of confiscation exists in theory, although seldom or never exerted; and it not being exerted, the right of the creditor to sue revives in full force on the restoration of peace.t It is obvious that when the cause of action accrues during the state of war the rule can apply only to such or- dinary private transactions between the parties as will give the plaintiff a standing in the courts of the belligerents ; for if the intercourse between the parties be such as is prohibited by the law of nations during war, the plaintiff cannot pursue any remedy in the courts.?. 1 See Wheaton’s International Law, by Lawrence, pp. 541, 877. The ancient plea of “alien enemy ’’ might by the common law be set up in bar, because the debt itself was considered as forfeited to the sovereign, as a reprisal for damages committed by the enemy. But since ‘‘ com- merce has taught the world more humanity, and has modified the too rigorous rules of the old law,’’ and as private debts are not now in fact confiscated by civilized nations in the event of war between them it may well be doubted if such a plea can ever be good, the reason or ground of it having entirely failed. Per Jackson, J., in Levine v. Taylor, 12 Mass. 8 (1815). Buta suit already pending when the rebellion broke out was held to have been properly dismissed, the plaintiffs thereby becoming alien enemies. Howes v. Chester, 33 Ga. 89. It would seem to be the correct practice in such case to continue, and not dismiss, the suit. Elgee v. Lovell, 1 Woolw. 102; Bishop v. Jones, 28 Tex. 294: Faulkland v. Stanion, 12 Mod. 400. 2 The rule is well settled that during any war, foreign or civil, an action cannot be prosecuted by an enemy residing in the enemy’s terri- tory, but must be stayed until the return of peace. But the rule tem- porarily restrains the remedy only, without denying or impairing the existence of the right. Kershaw v. Kelsey, 100 Mass. 561. The opinion by Gray, J., in this case contains an exhaustive discussion of the ques- tion as to what constitutes lawful or unlawful intercourse between the citizens of belligerent countries, with a full citation of the authorities; the conclusion being that.it is now the general law of nations that commercial intercourse, and commercial intercourse only, should be prohibited. 188 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. § 130. Principle applied in Cases arising out of the War of the Rebellion. — It is considered that the War of the Rebel- lion was accompanied by the general incidents of a war beween independent nations, —the inhabitants of the so-called confederate states on the one hand, and of the loyal states on the other, becoming thereby reciprocally enemies to each other.! Thus all commercial intercourse and correspondence between them were interdicted by principles of public law as well as by express enactments of Congress, the result being that “the courts of each belligerent were closed to the citi- zens of the other.” ? So it is held that the time during which the courts in the rebellious states were closed to the citizens of the loyal states is, in a suit brought by the latter, since, to be excluded from the computation of the period of limitation fixed by the statutes of the states in rebellion within which suit is brought, although the exception be not provided for by the local statutes. And this is so independently of the Act of Congress of June 11, 1864.4 So, on the other hand, 1 «¢ When a nation becomes divided into two parties, absolutely inde- pendent, and no longer acknowledging a common superior, the state is dissolved, and the war betwixt the two parties in every respect is the same as a public war between two different nations. . . . The obliga- tion of observing the common laws of war is therefore absolute, indispens- able to both parties, and the same which the law of nature obliges all nations to observe between state and state.’’ Vattel, Law of Nations, Book iii., Ch. XVIII. 2 Brown v. Hiatts, 15 Wall. 177. 8 Hanger v. Abbott, 6 Wall. 532. See to the same effect, Brown v. Hiatts, supra ; Green v. United States, 17 Ct. of Cl. 174; Jackson Ins. Co. v. Stewart, 1 Hughes (C. C.), 310; Brewis v. Lawson, 76 Va. 36; Small v. Lumpkin, 28 Gratt. 832; Grigsby v. Peak, 57 Tex. 142; Traweek v. Kelly, 60 Miss. 652; Perkins v. Rogers, 35 Ind. 124; Harrison v. Hen- derson, 7 Heisk. 315, overruling Girdner v. Stephens, 1 id. 280; but see Pheenix Ins. Co. v. Underwood, 12 id. 424. 4 Rev. Sts. U.S. § 1048. “In all cases where, during the late rebel- lion, any person could not, by reason of resistance to the execution of the laws of the United States or of the interruption of the ordinary course of judicial proceedings, be served with process for the commencement of any action civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commence- ment of such action.’? In State v. Winn’s Succession, 33 La. Ann. 1392, SEC. IV.] | EXCEPTIONS ARISING FROM NECESSITY. 189 where the plaintiff, a citizen of Virginia, held a certain obli- gation under seal against citizens of Kansas, upon which obligation his cause of action accrued one month after the war began, it was held that the period of the war was to be deducted in the computation of the period of limitation under the laws of Kansas. But in the United States Court of Claims, it it is held that in computing the six years after his claim against the United States first accrues, and within which it must be filed, the period must be included during which the plaintiff was unable to sue in that court by reason of the aid he gave the rebellion. For the statute establishing the Court of Claims creates certain effectual disabilities, and expressly excludes all others; and “the courts cannot, in view of the language of the statute, exclude from computa- tion, on the issue of limitation, the time intervening between the accruing of the claim ... and the promulgation of the amnesty proclamation.” ? § 181. Incapacities created by Act of Law: Operation of the Statute suspended.— Another exception, arising out of the necessity of the case, occurs when, by act of law, one party is forbidden to sue, or the other is made incapable of being sued. Thus the running of the statute limitation is suspended by an injunction against suit. And mere ir- regularity in the granting of the injunction will not prevent the court, dissenting from the views expressed in Stewart v. Kahn, 11 Wall. 493, and Abey v. Brigham, 28 La. Ann. 840, held that the above statute applies only to proceedings in the federal courts. 1 Brown v. Hiatts, 15 Wall. 177. The period of the war is considered, judicially, as extending from the date of the Proclamation of Blockade, April 27, 1861, to the formal Proclamation of the close of the war, April 2,1866. Id. In some of the cases in the state courts, the period to be deducted from the statute limitation has included the time during which the country remained in a disturbed condition after the war. See Grigsby v. Peak, 57 Tex. 142; State v. Winn’s Succession, 83 La. Ann, 1392. 2 Kendall v. United States, 107 U. S. 123. 8 Little v. Price, 1 Md. Ch. 182; Moore v. Crockett, 10 Humph. (Tenn.) 865; Hutsonpiller v. Stover, 12 Gratt. 579; Doughty v. Doughty, 2 Stockt. 847; Wilkinson v. Flowers, 87 Miss. 579; Cox v. Montford, 66 Ga. 62; Sands v. Campbell, 31 N. Y. 345; Barker v. Millard, 16 Wend. 572; Fincke v. Funke, 25 Hun, 616. 190 EXCEPTIONS TO OPERATION OF STATUTE. [CHAP. III. it from operating to suspend the running of the limitation. But an injunction against selling property mortgaged to se- cure a note will not prevent the mortgagee from proceeding to sue at law on the note, and so will not have the effect to suspend the operation of the statute.? It is held that pro- ceedings in equity, the effect of which is to suspend the right of action at law upon the subject-matter, relieve the party from the effect of the limitation; and this is the case, even although the court in equity has no jurisdiction, if the party has come into court and submitted himself to the juris- diction. A mere agreement to submit a case to arbitration will not suspend the operation of the statute. It seems, however, that an actual submission will suspend it, pending the submission.5 § 182. Incapacity created by Statute. — Where a temporary incapacity to sue is created in certain cases by statute, the period of disability is to be excluded from the computation of ‘time under the statute of limitations. Thus, the limitation in favor of administrators does not begin to run, as to per- sons having a right of appeal against their appointment, until the time within which an appeal may be taken has elapsed, or the decree of appointment has become absolute.6 So it is held that in the process of foreign attachment, the fund at- tached is to be regarded as in the custody of the law; so that, pending the proceedings of garnishment, the garnishee can- not be sued, and the running of the statute in his favor is suspended.’ 1 Walton v. Pearson, 85 N. C. 34. 2 State Bank v. Byrd, 14 Ark. 496; Yale v. Randle, 23 La. Aun. 579. 3 Barrow v. Shield, 13 La. Ann. 57. 4 Cowart v. Perrine, 18 N. J. Eq. 454. 3 5 Same v. Same, 21 id. 101. An agreement to waive the statute on the hearing before an arbitrator is held to be a sufficient written acknowledg- ment to take the case out of the statute. Anderson v. Sibley, 28 Hun, 16. 6 Dowell v. Webber, 2 S. & M. 452; Abbott v. McElroy, 10 id. 100; Lewis v. Broadwell, 8 McLean, 568; Trecothick v. Austin, 4 Mason, C. C. 16. See also Planters’ Bank v. Bank of Alexandria, 10 Gill & J. 346. 7 Mottingly v. Boyd, 20 How. 128; King v. Baker, 29 Pa. St. 200. But see contra, Ingraham v. Reagan, 23 Miss. 213. SEC. IV.] EXCEPTIONS ARISING FROM NECESSITY. 191 § 183. Insolvency or Bankruptcy does not suspend the Stat- ute: Stay Laws. — Ordinarily, the pendency of insolvency pro- ceedings against a debtor will not prevent the running of the statute limitation against his creditor ; for the effect of such proceedings is not to take away or suspend the creditor’s right of action, but, in the discretion of the court, to stay proceed- ings in the creditor’s action to await the debtor’s discharge, which, if obtained, may be pleaded in bar.1 On the same principle, it is held that stay laws which do not interfere with the creditor’s right of action, and of keeping the judg- ment alive by seire facias or other proper process, do not suspend the operation of the statute, though they prevent the taking out of execution.2 So, the representation of the estate of a deceased person as insolvent, and the appoint- ment of commissioners, do not suspend the operation of a statute limiting actions against executors and administra- tors.3 But the limitation does not run against the right of a creditor of an insolvent to prove his debt against the insol- vent’s estate, provided he has a cause of action not barred by. 1 Collester v. Hailey, 6 Gray, 517; Richardson v. Thomas, 13 id. 381; Doe v. Erwin, 1384 Mass. 90; Greenwald v. Appell, 17 Fed. Rep. 140; Milne’s Appeal, 99 Pa. St. 483; Rosenthal v. Plumb, 25 Hun, 336; Hoff »v. Funkenstein, 54 Cal. 233. 2 Kirkland v. Krebs, 34 Md. 93. In this case it is said that exceptions will not be engrafted upon the statute, unless in cases where no laches can be imputed, and where it is impossible, by suit or otherwise, to keep the cause of action alive and prevent the operation of the statute. Where a state law prohibiting suits for slaves or the hire thereof was held consti- tutional by the state court, but afterwards unconstitutional by the United States court, it was held, nevertheless, that the fact that a writ could not be successfully prosecuted under the statute till the decision of the latter court was obtained, did not affect the operation of the statute upon claims under the statute. Harris v. Gray, 49 Ga. 585. 8 Tarbell v. Parker, 106 Mass. 347; Blanchard v. Allen, 116 id. 447; Edmunds v. Rockwell, 125 id. 368. A report and declaration of insol- vency on an intestate estate is a defence only to the administrator by whom such declaration is made, and does not suspend the operation of the statute after the expiration of that administration, when the statute limitation begins to run and continues to run, notwithstanding a vacancy occurs in the administration. Reed v. Minell, 30 Ala. 61; Tarbell v. Parker, 106 Mass. 347. 192 EXCEPTIONS TO OPERATION OF STATUTE. ([CHAP. III. limitation when the insolvency proceedings are commenced ; 1 for the assignee of the insolvent and his creditor stand to each other in the relation of trustee and cestut que trust, and as between these the statute does not apply.” 1 Willard v. Clarke, 7 Met. 485; Collester v. Hailey, 6 Gray, 517; Stoddard v. Doane, 7 Gray, 887. See Hagwood v. Robinson, 7 Rich. (S. C.) 43; Flower’s Succession, 12 La. Ann. 216. 2 See § 329, post. SEC. I.] WHAT ACTIONS MAY BE BARRED. 198 CHAPTER IV. APPLICATION OF THE STATUTE TO ACTIONS OF CONTRACT. SECTION I. WHAT ACTIONS MAY BE BARRED. § 134. Generally. —Itis provided by the statute 21 James I. c. 16, § 8, that all actions upon the case other than for slan- der, actions of account, actions for trespass, debt, and detinue, shall be brought within six years next after the cause of such actions accrues, and not after, and the acts of limitation in this country contain, substantially, the same provision, and are subject to like construction.1 The exception in the statute concerning the trade of merchandise between merchant and merchant, and the limitations of actions of tort, contained in the same section, are considered elsewhere.” (a) Of Account. § 135. Action or Bill for.— The ancient action of account was the remedy provided in cases where there was a privity between the parties, as against a bailiff or receiver, or a priv- 1 A strict construction of the statute as applied to actions at law will be followed except in cases falling within the admitted exceptions. See §§ 16, note, 106, 127, ante. It is obvious that all demands founded upon simple contracts are barred by virtue of the presumption of payment at the expira- tion of twenty years, though the statute of limitations be not pleaded, and that evidence of the lapse of time is admissible under the general issue. Bass v. Bass, 8 Pick. 187; Jackson v. Sackett, 7 Wend. 94; Carr v. Dings, 54 Mo. 95. The court will instruct the jury, in such cases, that they may presume the settlement of the account, and that the balance is paid. See §§ 156, 208, post. 2 See §§ 200-208, 209, et seg., post. 13 194 ACTIONS OF CONTRACT. [cHapP. Iv. ity in law, as against a guardian in socage. It is in its scope and effect very like a bill in equity to enforce the execution of a trust. The first judgment is a judgment quod computet ; that the defendant do account, upon which, the defendant offering to account, the court appoints auditors to take and declare the account between the parties, which being filed, the final judgment is that the plaintiff do recover against the de- fendant so much as the latter is found to be in arrear.1 An extension of the remedy was for the benefit of trade and com- merce, and it came to be permitted in the case of mutual accounts between merchants; so that any one naming himself a “merchant” might have an account against another, nam- ing him a “merchant,” and charging him as receiver? An account is the sole remedy, at law, by one partner against his copartner, unless there has been an express promise or cove- nant to account, or a settlement made and a balance actually struck by mutual agreement.2 It was formerly doubted whether an action of assumpsit would lie for the balance of an account, where there were items on both sides.* But it is now settled that if there be anything due on one side, an action of assumpsit may be maintained for the balance.’ But 1 Cottam v. Partridge, 4 M. & G. 271. 2 1 Story’s Eq. Jur. 441. In Cottam v. Partridge, supra, Tindal, C. J., said that the only authority he had found where this action had been held to lie between merchants, was in Fitzherbert, N. B. 117 D. See Inglis v, Haigh, 8 M. & W. 769. 8 See Ozeas v. Johnson, 1 Binn. (Penn.) 191; Leonard ». Leonard, 1 W. & S. 342; Andrews v. Allen, 9 S. & R. 241; Young v. McCormick, 2N. J. L. 668. So account would lie between parties who had been en- gaged in a joint undertaking, and one or all of them had received moneys which ought to be accounted for to the others. Swift v. Raymond, 11 Vt. 317; Kidder v. Rexford, 16 id. 169; Mattocks v, Lyman, id. 113. * Tomkins v. Willshear, 5 Taunt. 231. 5 2 Saund. 127, Williams’s note (d). It was intimated by Lord Ellen- borough that an action of account was the proper mode of investigating a running account between a merchant and a broker, and that indel:tatus assumpsit would not lie. Scott v. M’Intosh, 2 Camp. 238. But it was afterwards decided, that if, upon dissecting an account, there appear money due upon certain items, assumpsit will lie, notwithstanding the items on each side may be numerous. In the latter case Gibbs, C. J., observed that ‘‘ the foundation of an action of an account is that the SEC. I.] WHAT ACTIONS MAY BE BARRED. 195 equity early began to assume jurisdiction in matters of ac- count and to supersede the necessity of the action, which has now very generally fallen into disuse. Courts of equity have long exercised a general jurisdiction in cases of mutual accounts, upon the ground of the inadequacy of the remedy at law; and have extended the equitable remedy to a vast number of cases to which the remedy at law was never ap- plied? In equity, matters of account are more commodiously adjusted and determined for the interest of both parties ; the plaintiff being entitled to a discovery of books and the de- fendant’s oath, and the defendant, on the other hand, being allowed to discharge himself by his own oath.? The period of limitation to an action of account is, either by construction or statute provision, made the same in equity as at law. In an early case, the Lord Chancellor was of opinion, that “ where one receives the profits of an infant’s estate, and, six years after his coming of age, he brings a bill for an account, the statute of limitations was a bar to such suit, as it would be to an action of account at common law.’”’* So the rule is applied to a bill for an account between partners,® and also to accounts between tenants in common, of real property,® or of personal property held as merchandise,’ and is recognized in cases where a defendant is sought to be charged as receiver.2 In New York, it was held that the statute was a bar to a suit in equity for an account and settlement, and for the payment of a balance due from one mercantile firm to another by reason of joint adventures in which the two firms had been engaged, when all the items of the account, on both sides, bore date more than six years before the filing the bill.® party wants an account, and is not able to prove his items without it.’ Tomkins v. Willshear, 1 Marsh. 115; s. c. 5 Taunt. 431. See Inglis v. ‘Haigh, 8 M. & W. 769. 11 Story, Eq. Jur. § 442. 2 Id. 8 See Bac. Abr. Accompt. 4 Lockey v. Lockey, Prec. in Chane. 518. 5 Prewett v. Buckingham, 28 Miss. 92. 6 Thomas v. Thomas, 5 Exch. 88. 7 Baxter v. Hozier, 5 Bing. N. C. 288. 8 Prince v. Heylin, 1 Atk. 493. ® Didier v. Davison, 2 Barb. Ch. 477. 196 ACTIONS OF CONTRACT. [cHapP. Iv. (b) Of Asswmpsit. § 186. Statute applied to, in express Terms or by Construc- tion. — The action of assumpsit, probably by an inadvert- ence,! was not enumerated among the actions named in the statute of limitations of 21 James I.c. 16. But this action, being comprehended originally in the class of actions of tres- pass on the case, as being the remedy whereby damages are to be recovered for the breach of any contract or agreement not under seal, it came early, by construction, to be considered within the statute, as being fairly included in the intention of the words “actions on the case.”? So in Ohio and Iowa the words “actions upon the case,” in the local statutes, were held to include the action of assumpsit ;® and it was held that, under a statute of limitations not restricted to a particular cause of action, and providing that the action, whatever its technical denomination, should be barred if not brought within a pre- scribed time ; every cause for which such action might be pros- ecuted was within the spirit of the statute.t It.will be found, however, that generally, the American statutes of limitation are made applicable in express words to the action of assumpsit, or to actions of contract in the nature of assumpsit. In Michigan, where the statute ® permits assumpsit to be brought where cove- nant might be maintained, and the statute of limitations ® bars any action of assumpsit after six years, it was held that it was the form and not the cause of action that fixes the bar, and that 1 Per Parke, B., in Inglis v. Haigh, 8 M. & W. 769. 2 Bac. Abr. tit. Lim. of Act.; Chievley v. Bond, 4 Mod. 105; Beatty v. Burns, 8 Cranch, 98; Harris v. Saunders, 4 Barn. & C, 411; Haven v. Foster, 9 Pick. 112; Chandler v. Vilett, 2 Saund. 120; Crosier v. Tom- linson, 2 Mod. 71. See remarks of Denman, C. J., in Piggott v. Rush, 4 Ad. & El. 912. 8 Williams v. Williams, 5 Ohio, 444; Maltby v. Cooper, Morris (Iowa), 59. 4 M’Cluny v. Silliman, 3 Peters, 270. See § 16, note, ante. But in Mississippi it was held that the words ‘ actions of account and upon the case,’’ in the fourth section of the statute of limitations of 1822, related exclusively to special actions of that character, and not to actions of as- sunipsit upon open accounts. Phillips v. Cage, 12 S. & M. 141. 5 Comp. L. § 6194. 6 Id. § 7148. SEC. I.] WHAT ACTIONS MAY BE BARRED. 197 the remedy elected is to be governed by the limitation appro- priate to itself. § 137. Application of the Statute to Specific Cases. — Since, whenever a remedy is to be enforced in a particular form of action, all the incidents of such an action must attach to it, the statute of limitations is equally a bar to an action of assumpsit for money had and received, though it is brought to try landed title? It is a bar, also, to assumpsit by one tenant in common against his cotenant for the reception and retention of profits. In virtue of the provision that “all actions of debt for arrearages of rent” shall be barred if not commenced within six years, the statute is a defence to an action by a landlord for rent against one who had been a tenant from year to year, and who had not, within six years, occupied the premises or paid rent.2 Assumpsit for unliqui- dated damages is within the statute, because it lies for their recovery.* It was held that the statute extends to actions of assumpsit upon bills of exchange and promissory notes, for these are not such matters of account as are intended by the ‘exception in the statute in respect to merchants’ accounts, but are in the nature of accounts stated, and no longer open.® 1 Christy v. Farlin, 49 Mich. 319. Under a statute providing that debt or indebitatus assumpsit may be brought for the same cause, the form of summons being the same in both cases, it was held, the statute of limita- tions being pleaded, that the law would presume that to be the particular form of action which was best adapted to advance the plaintiff’s remedy. Bodell v. Janney, 4 Gilm. (Ill) 193. 2 Per Story, J., in Beatty v. Burnes, 8 Cranch, 98. 3 Coleman v. Hutchinson, 3 Bibb (Ky.), 219. In such cases the statute begins to run from the time when the rent is first payable, and not from the commencement of the occupancy. M’Clure v. M’Clure, 1 Grant (Penn.), 222. But if articles of personal property are worn out and rendered valueless by the bailee, the bailor can recover only what they were worth six years before action brought. Rider v. Union India Rub- ber Co., 4 Bosw. 169; 5 Bosw. 85. * Leigh v. Thornton, 1 B. & Ald. 625. 5 Chievly v. Bond, 4 Mod. 105. Every subsequent holder, in respect to the acceptor and the maker of a note, stands in the same predicament as the payee. See Pierce v. Crafts, 12 Johns. 90; Raborg v. Peyton, 2 Wheat. 885. Taking a bill of exchange is at least prima facie evidence of a satis- 198 ACTIONS OF CONTRACT. [cHaP. Iv. § 138. Consequential Damages arising from Torts.— So it would seem that the statute applies to actions of assumpsit brought to recover damages for wrongs or torts, which, though they arise from malfeasance, non-feasance, or misfeasance, are still guast ex contractu. Thus the statute may be pleaded in bar to an action in assumpsit brought by a debtor in execu- tion against a sheriff for the surplus proceeds of a sale had on the execution, or to a like action brought by a justice of the peace for fees due him as proved by his docket,? or to an action against a stockholder of a corporation founded upon his individual liability created by the charter.® § 139. Different Application of the Statute to Actions of Tort and Assumpsit for the Same Cause. — It follows that an action of assumpsit may not be barred by the statute, when to an action for a tort for the same cause the statute may be pleaded. Thus it has been held, that, if a tenant for life has rendered accounts to the remainder-man of timber cut by the tenant during a period of more than six years before the filing of a bill in equity for an account of such timber and the value of it, the statute cannot be pleaded successfully to the bill; for though, if the remainder-man had brought an action of trover, the tenant for life might, notwithstanding the rendering of the accounts, have pleaded the statute, he could not have done so, if the remainder-man had sued in assumpsit. Sir John Leach considered the bill as analogous to an action in assumpsit, and that the rendering of the account defeated the plea of the statute, and said: “It is clear, from the authorities, that the plaintiff might have elected to bring an action of assumpsit, and not trover, for the moneys had and received by the defendant from the sale of timber, and that the rendering of the account, as alleged by the bill, would have been an acknowledgment by the defendant, which, in the action of assumpsit, would have taken the case out of the statute of faction and extinguishment of an antecedent debt. Wallace v. Agry, 4 Mason, 336. 1 Alexander v. Leckey, 9 Pa. St. 120. 2 Harris v. Christian, 10 Pa. St. 233. 8 Freeland v. McCullough, 1 Denio, 414; Corning v. Same, 1 N. Y. 47. SEC. I.] WHAT ACTIONS MAY BE BARRED. 199 limitations.” Where there has been a tortious taking of prop- erty, the injured party may bring either trespass or trover, or waive both, and bring assumpsit for the value of the property when it has been converted into money ; and, if he choose the latter mode of redress, the tortfeasor cannot be permitted to allege his own wrong, for the purpose of carrying the injury back to a time which will let in the statute. § 140. Statute bars Claims secured by Collateral Pledge: Lien remains Good. — An action of assumpsit by a pledgee, to recover a simple contract debt, is not protected from the operation of the statute because property is pledged as collat- 1 Hony v. Hony, 1 Sim. & Stu. 568. Though trover is the proper action to recover the value of specific articles, yet, if the articles have been sold by the tortfeasor and he has received the money, assumpsit will lie, Willet v. Willet, 3 Watts, 277; Jones v. Hoar, 5 Pick. 285. And, generally, assumpsit will lie against one who has unlawfully obtained possession of the goods of another and sold them, or converted them to his own use so that they cannot be specifically returned. McCullough v. McCullough, 14 Pa. St. 295; Dundas v. Muhlenberg, 35 id. 351; Bank of North America v. M’Call, 4 Binn. 374. So for deceit, fraud, or a breach of warranty in the sale of property. Rew v. Barber, 8 Cowen, 272; Camp v. Pulver, 5 Barb. 41; Leach v. Leach, 58 N. Y. 630; Ascutney Bank v. McOrmsby, 28 Vt. 721. See Russell v. Gilmore, 54 Ill. 147. 2 Per Parker, C. J., in Lamb v. Clark, 5 Pick. 193. In this case the defendant had obtained possession of divers promissory notes without a legal transfer from the owner, and received payment of some of them more than six years, and of others within six years, next before the com- mencement of the action. It was held that he was liable in assumpsit for the sums received within the six years, and was estopped to say that the notes were obtained by fraud so that an action of trover would have been barred by the statute. So for cutting and carrying away trees, the plain- tiff may waive the tort, and sue in assumpsit, if the trees have been sold by the defendant. Jones v. Hoar, 5 Pick. 285; Martin v. Brooklyn, 1 Hill, 545; Halleck ». Mixer, 16 Cal. 574; Ivey v. Owens, 28 Ala. 641. Where the defendant took the plaintiff’s iron without leave and promised the following year to pay for it, the statute was held to run from the date of the promise. Farnham v. Thomas, 56 Vt. 83. Where a father gave to his son a wool-carder, worth $1,000, by way of advancement, and after- wards took possession of and used the carder, it was held that a claim against his estate for such use was subject to the bar of the statute like any debt. Persoll v. Scott, 64 Ga, 767. 200 ACTIONS OF CONTRACT. [ CHAP. IV. teral security for the debt.! But though, in such case, the remedy to enforce the debt may be barred, yet the lien upon the pledged property will remain. Thus in an action of trover, brought in 1800, for merchandise, the defendant, a wharfinger, claimed a lien upon the merchandise for the bal- ance of a general account which had become due in 1790. It was contended, as the balance for which the defendant in- sisted he was entitled to the lien had accrued in 1790, that the lien on it was barred; but Lord Eldon considered that the debt had not been discharged, though the remedy to enforce it by action was taken away. Although the statute had run against the demand, yet if the creditor had possession of the goods on which he had a lien for a general balance, he might hold them for that demand by virtue of his lien.2 So an acceptor may retain funds to indemnify him against his ac- ceptances, though these have been outstanding longer than the statute time of limitation.? So where an attorney had a lien upon a judgment and his debt was barred by the statute, the court held that the statute barred the remedy but not the right, and that, although the plaintiff had taken no steps to recover his costs, for six years, he had still a right to be paid from the sale of the goods. For whether the security for a simple contract debt is a lien on real or personal property, the lien is not impaired in consequence of the debt’s being 1 Per Gibson, C. J., in Slaymaker v. Wilson, 1 Pa. 216. There isa distinction to be observed between a pledge or pawn, and a mortgage of property, since in the case of a mortgage the legal title to the property passes at once to the mortgagee, subject to redemption, while a pawnee or pledgee acquires merely a right of possession as security for the debt. See Ryall v. Rowles, 1 Atk. 167; Cortelyou v. Lansing, 2 Caines, 200. In other words, the pledgee’s lien is a charge upon the thing pledged and not a property in it, and if the thing be voluntarily given up the lien is extinguished. See Story, Eq. Jur. § 506; Mathews v. Menedger, 2 M’Lean (C. C.), 145. It follows that neither prescription nor limitation will run in favor of the possession of the pledgee. Slaymaker v. Wilson, supra; Kemp v. Westbrook, 1 Ves. 278; White Mountain R. R. Co. »v. Bay State Iron Co., 50 N. H. 57. See Spencer, Ex parte, 6 Lea, 391; Fisher v. Fisher, 9 Baxt. 71; Lewis v. McDowell, 88 N. C. 261. 2 Spears v. Hartly, 3 Esp. 81. Morse v. Williams, 8 Camp. 418, per Lord Ellenborough. 4 Higgins v, Scott, 2B. & Adol. 413. SEC. I.] WHAT ACTIONS MAY BE BARRED. 201 barred. Thus where a debt is due to A from B, on a prom- issory note secured by a mortgage of real estate, though an action on the note be barred by lapse of time, yet A is not deprived of the benefit of his lien as mortgagee! And though the fact that the personal security is barred by the statute of limitations may raise a presumption of payment, this pre- sumption may be rebutted, and whether it be rebutted or not is a question for the jury.? If the mortgage contains no cov- enant for the payment of money, the right of foreclosure will be barred when the note is barred.2 So the statute of limita- tions does not run against the lien of the grantor of land for the purchase-money, who, at the time of the sale, gave a bond for a deed, to be executed when the purchase-money should be paid, and took back bonds for the purchase-money.’ By - 1 Clark v. Figes, 2 Stark. 234; Belknap v Gleason, 11 Conn. 160; Thayer v. Mann, 19 Pick. 585; Spears v. Hartly, supra; Toplis v. Baker, 2 Cox, Ch. 123; Miller ». Helm, 2 S. & M. 687; Miller v. Jefferson Col- lege, 5 id. 651; Elkins ». Edwards, 8 Ga. 825; Crain ». Paine, 4 Cush. 483; Joy v. Adams, 26 Me. 330; Trotter v. Erwin, 27 Miss. 772; Sparks v. Pico, 1 McAll. 497; Buckner v. Street, 15 Fed. Rep. 365; Nichols v. Briggs, 18 S. C. 478; Nevett v. Bacon, 32 Miss. 212; Longworth v, Taylor, 2 Cinn. (Ohio) 39; Sichel v. Carillo, 47 Cal. 493. But see Kyger v. Riley, 2 Neb. 20. In New Hampshire it is provided by statute that, when a note is secured by mortgage, the plaintiff may sue on the note so long as he has aright of action on the mortgage; and this statute includes notes secured by mortgages of personal property. Colby v. Everett, 10 N. H. 429; De- merritt v. Batchelder, 28 N. H. 5338. But with foreclosure and appro- priation of the property pro tanto in payment, the right to sue on the note ceases. Cross v. Gannett, 39 N.H. 140. Where cotton was deposited by the maker of a promissory note, with the assent of the sureties, under the agreement that, when sold, its proceeds should be applied to the pay- ment of the note, it will not have the effect to withdraw the note from the operation of the statute of limitations, although the cotton is sold and its proceeds applied in payment after the maturity of the note, and within six years before action brought.’ Lyon v. State Bank, 12 Ala. 508. Suther- land, J., in Jackson v. Sackett, 7 Wend. 94, intimated an opinion that a mortgage to secure a simple contract debt was presumed to be paid in six years, reasoning that the statute of limitations might, at the expiration of that.time, be pleaded to a suit on the note. But this intimation is counter to the authorities. See Heyer v. Pruyin, 7 Paige, 470. 2 See cases cited, supra. 8 Harris v. Mills, 28 Ill. 44. * Hopkins v. Cockerell, 2 Gratt. 88. But see Littlejohn v. Gordon, 32 Miss. 235. 202 ACTIONS OF CONTRACT. [cHapP. Iv. statute in Pennsylvania the land opposite which certain street improvements are made by the local authorities, is made subject to a lien for the expense, and against this lien the statute of limitations relative to personal actions does not run, as there is no personal: liability. § 141. Limitation applies to Set-offs.—As an action can- not be maintained on a demand after the time limited by the statute has elapsed, so a demand already barred by the statute cannot be set off. It is well settled that if the defendant plead a set-off, the plaintiff may reply the statute; or, if the defendant, under the plea of the general issue or payment, give the plaintiff notice of his intention to offer his demand in evidence, the plaintiff, after it is offered, may interpose the bar of the statute.2 The statute 21 Jac. I. c. 16, § 8, is nota bar to a set-off unless the six years have expired before the action in which the set-off is pleaded is brought. Where, by statute, defendants were allowed to file a set-off at any time before trial, whether the set-off accrued before or after the commencement of the action, it was held that if the set-off accrued before the commencement of the action, and was at the time of such commencement a subsisting and valid claim, it might be filed at any time before trial, though more than the limited time had elapsed between the accruing of the set- off and the time of filing. But if the set-off accrues after the commencement of the action, it must be filed within the lim- ited time, as reckoned from the time of its accruing.* It is 1 Council v. Moyamensing, 2 Pa. St. 224. 2 2 Bull, N. P. 180; Hicks v. Hicks, 5 East, 16; Hinkley v. Walters, 8 Watts, 260; Shoenberger v. Adams, 4 id. 430; Levering v. Rittenhouse, 4 Whart. 130; Reed v. Marshall, 90 Pa. St. 345. See also Watkins v. Har- wood, 2 Gill & J. 807; Ruggles v. Keeler, 3 Johns. 263; Trimyer v. Pol- lard, 5 Gratt. 460; Harwell v. Steel, 17 Ala. 372, In Drysdale’s Appeal, 14 Pa. St. 531, heirs who were claiming their ancestor’s estate were per- mitted to set up the statute of limitations in bar of debts due by them to the estate. But see Rose v. Gould, 11 Eng. L. & E. 10; 5. c. 21 L. J. (N. 8.) Ch. 360, as cited, post, § 143. 3 Walker v. Clements, 15 Q. B. 1046; Moore v. Lobbin, 26 Miss. 304. 4 Trimyer v. Pollard, 5 Gratt. 460. In pleading the statute of limita- tions to a counter-claim it must be shown that the bar of the statute had SEC. I. ] WHAT ACTIONS MAY BE BARRED. 208 held that where an administrator pleads a set-off which is barred by the statute it is no answer to the objection of the statute that he is allowed, as administrator, a certain time within which to collect the debts; as, during such time, he may sue, though he cannot be sued In the application of the statute to demands in set-off, the ordinary rules will be applied. Thus a person who has been absent from the state, and on his return brings a suit, cannot avail himself of the statute against a claim in set-off, which, deducting the time of his absence, would not be barred.2 And it is held to be error to exclude an account in set-off merely because, on its face, it appears to be barred by the statute.® § 142. Except in Case of Demands arising out of the Same Subject-Matter.— An exception to the general rule as to set- ° offs occurs where the mutual demands betwen the parties accrued nearly at.the same time and arose out of the same subject-matter as in the case of accommodation notes ex- changed.* But in order to relieve the demand sought to be set off from the operation of the statute it must be similar to the principal claim and have relation to it in the nature of a counter-claim.6 The principle seems to be that where there is any equitable matter of defence in the nature of set-off, or which might be the subject of a cross-action growing out of the subject-matter for which the action is brought, courts will permit it to be set up, although a cross-action, or an action on the claim in set-off, might be barred by the statute. Thus in an action of debt on a bond given for the price of matured when the original suit was commenced, and it is not sufficient to allege a bar when the counter-claim was filed. Eve v. St. Louis, 91 Ind. 457. 1 Turnbull v. Strohecker, 4 M’Cord, 210. 2 Hewlett v. Hewlett, 4 Edw. Ch. 7. 3 Camp v. Gulett, 2 Eng. (Ark.) 524; Trimyer v. Pollard, supra. 4 Ord c. Ruspini, 2 Esp. 569. In this case, Lord Kenyon observed ‘that, as the transactions between the plaintiff and the defendant were all of the same date, and as the bills seemed to have been given in the course of those transactions and for their mutual accommodation, it would be the highest injustice to allow one to have an operation by law and not the other.”” 5 Mann v. Palmer, 8 Abb. Dec. (N. Y.) 162. 204 ACTIONS OF CONTRACT. [cHaP. Iv. land, a defence of partial failure of consideration because of a deficiency in quantity, is not barred by the statute! So in an action on a bond against the widow and heirs of the obligor, the defence of payment by board furnished the obligee under an agreement that it should be applied to reduce the bond, was held good, although most of the items in the account had accrued more than six years before the action was brought.2 So in an action to recover the balance of the price of goods sold, unsoundness of the goods may be set up in defence although an action to recover back the amount originally paid would be barred.? So usurious interest paid may be set off in an action on the note. The Indiana statute of limitations exempts from its operations so much of any matter pleaded as payment or set-off as shall equal the amount of the plaintiff's demand. But it has been held in Pennsylvania that the running of the statute against a claim which the defendant interposes in set-off is not stopped by the commencement of the suit, nor till the set-off be pleaded.® § 148. Specific Cases under the Application of the Rule and Exception. — Applying these principles it has been held that lapse of time is no bar to a vendor’s claim for the value of surplus land conveyed, when he is sued by the vendee who seeks to recover back part of the purcliase-money, on the ground that, although the vendee has been ejected from a portion of the surplus land conveyed, he still has possession of more than he paid for.7 When a testator gave his residu- ary estate to be divided amongst his children, directing that sums of money appearing to be due from them should be brought into the account, one of the children, against whom 1 Evans v. Yongue, 8 Rich. 113. 2 King v. King, 1 Stockt. 44. 8 Riddle v. Kreinbiehl, 12 La. An. 297; Lastrapes v. Roquet, 23 id. 68; Gullick ». Turnpike Co., 14 N. J. L. 545. 4 Hayes v. Gooding, 4 Met. (Ky.) 80. 5 Livingood v. Livingood, 6 Blackf. (Ind.) 268. 6 Gilmore v. Reed, 76 Pa. St. 462; King v. Coulter, 2 Grant’s Cas. 7. The rule in Pennsylvania seems to be that the limitation runs against the plaintiff until he issues his writ, and against the defendant until he answers or pleads. See McClure v. McClure, 1 Grant’s Cas. 222. 7 Richardson v. Bleight, 8 B. Mon. 580. SEC. I.] WHAT ACTIONS MAY BE BARRED. 205 there were charges of more than six years’ standing, was not allowed to set up the statute for the purpose of increasing the amount of his distributive share.! Where an action was brought on a promissory note, and the defendant pleaded a total failure of consideration and alleged a parol warranty of the property for which the note was given, as a part of his defence, it was held that the plaintiff could not avoid this de- fence by insisting on the statute of limitations, although more than four years had elapsed from the time of such parol war- ranty2 If a defendant insists that demands against which © the statute has run be allowed, he will not be permitted to set up the statute against similar demands put in by the plaintiff when the demands on both sides are matters of book account.8 In an action on a bond, a defence of payment by board fur- nished the obligee, under an agreement that it should serve to reduce the debt secured by the bond, was admitted, although most of the items in the account for board were barred by the statute. And generally, a debt otherwise barred may be ad- mitted in set-off when it was originally agreed that it should be applied to the demand in suit.® (c) Of Dedt, § 144. Distinguished from Assumpsit: Statute applied to. — The action of debt, when “ grounded upon any lending or contract without specialty,” is included in the class of actions ex contractu to recover a sum certain, the bringing of which is limited by the statute to the six years next after the cause of action accrues.6 The forms of declaration in assumpsit, 1 Rose v. Gould, 11 Eng. L. & E. 10, 21 L, J. (ww. 8.) Ch. 360. See Drysdale’s Appeal, 14 Pa. St. 531. 2 Morrow v. Hanson, 9 Ga. 398. § Gullick v. Turnpike Co., 14 N. J. L. 545. 4 King v. King, 9 N. J. Eq. 44. 5 Rowley v. Rowley, 1 Q. B. D. 463; Smith v. Winter, 12 C. B. 487. It has been held that an executor or administrator may set off against the share of a legatee or distributee a debt due from the latter to himself, al- though the same is barred by the statute. See Courtenay v. Williams, 3 | Hare, 539; Cordwell’s Estate, L. R. 20 Eq. 664. ° See Master, &c. v. Loder, 6 Eng. L. & E. 70. An action of debt against a devisee of land, to recover money charged thereon, is not an 206 ACTIONS OF CONTRACT. [cHapP. IV. and in an action of debt on simple contract, are very similar. They are, however, distinguished by the use of certain techni- cal words which give one character or the other to the respec- tive actions. The principal difference between these actions is that “the action of debt is founded upon the contract; the action of assumpsit upon the promise. In debt, the consider- ation of the contract must be stated, as also any inducement necessary to explain the contract or consideration, and it should be stated that the party agreed to pay: stating that he promised to do so would be bad.” ! (ad) Of Covenant. § 145. When it lies: Assumpsit in nature of. — The action of covenant lies only upon contracts under seal con- taining covenants, express or implied; and, therefore, unless the defendant has executed an instrument under seal, this action is not maintainable? But, wherever a covenant is not under seal, or wherever there has been a contract under seal and a subsequent and distinct simple contract founded upon a new consideration, and the plaintiff is proceeding upon the simple contract, the action must be assumpsit and not cove- nant,3 and consequently will be barred at the expiration of the time limited for actions of assumpsit.! So where the facts of action grounded on any lending or contract not under seal. Wilson v. Towle, 19 N. H. 244. ‘ Actions of debt grounded on only contract in writing ’’ include all suits brought to recover money for the breach of a contract in writing, without regard to the technical distinction between debt and damages. Robinson v. Varnell, 16 Tex. 382. Where a demand upon a contract cannot be established without the assistance of parol evi- dence, and rests partly in writing and partly in parol, the period of limi- tation is six years. Hackleman v. Henry County Comm’rs, 94 Ind. 36. 1 Metcalf v. Robinson, 2 McClean (C. C.), 363. See Emery v. Fell, 2 T. R. 28; Brill v. Neele, 3 B. & Ald. 208, in which case the declaration was demurred to, the cause assigned being the misjoinder of debt and assumpsit on the several counts. See also Dalton v. Smith, 2 Smith (K. B.), 618, in which a similar declaration was held to be bad. 2 Com. Dig. Pleader ; Browne, Actions at Law, 353; Adams v. Gibney, 6 Bing. 656. 8 Heard v. Wadham, 1 East, 619; White v. Parkin, 12 id. 578; King v. Beeston, 3 T. R. 592. 4 Where a lease was not under seal, but the surety’s agreement thereon ey SEC. II.] SPECIALTIES, 207 the case would have supported an action of covenant at com- mon law, but the statute has authorized the bringing of an ac- tion of assumpsit wherever covenant would lie, and assumpsit is accordingly brought, the statutory limitation of the latter action will apply. SECTION II. SPECIALTIES. (a) Generally. § 146. Statute of James I. not applicable to. — The limita- tions prescribed by the statute of 21 James I. are applied to “all actions . . . without specialty;” and it was a rule that a plaintiff suing in indeditatus assumpsit must set forth in his declaration the certain cause of the debt for which the defendant promised, so that it might clearly appear that the debt did not arise on a contract of record or on a sealed in- strument. Where it appeared that the plaintiff might have sued in indebitatus assumpsit and that the judgment which had been obtained by him (in a colonial jurisdiction) was only prima facie evidence of debt, Lord Mansfield said: “That being so, the judgment was not a specialty, but the debt only a simple contract debt.”? It would seem to follow that if the judgment had been conclusive evidence of the debt, it would have been a specialty, so that the statute of limita- tions could not have been a bar to an action upon it. This view of the matter seems to derive weight from the considera- tion of the nature and effect of a specialty, which, being under seal, raises a conclusive presumption of a consideration. A distinction is to be observed, also, between actions of debt founded upon contracts without specialty, or contracts in ‘to pay the rent on the default of the lessee was under seal, it was held un- der the local statute that, although the lessee might plead the statute after six years, the action against the surety would not be barred until the lapse of sixteen years. Wagoner v. Watts, 44 N. J. L. 126. 1 Christy v. Farlin, 49 Mich. 319, as cited, § 186, unte. 2 Walker v. Witter, 1 Doug. 1. 208 ACTIONS OF CONTRACT. [cHaP. Iv. fact, and actions founded on debts created by construction of law.! § 147. Debts created by Statute not barred. — It is settled that where the liability of the defendant is created, not by the act of the parties, but by the positive terms of the statute, the plaintiff ‘is not barred of his remedy by the statute of limita- tions. Thus where, debt being brought on the statute of 1 Pease v. Howard, 14 Johns. 479; and see Tilghman v. Fisher, 9 Watts, 441; Cartmill v. Hopkins, 2 Mo. 220; 1 Saund. 36-38; 2 id. 64. The statute may be pleaded to indebitatus assumpsit against the sheriff for money levied upon a jieri facias. Cockram v. Welby, 1 Mod. 245. One form of action may be founded upon a specialty, namely, the record of the judgment; and another on a contract. In one case the statute is not pleadable, in the other it is. Id. Debt lies on all specialties to re- cover a demand for money secured thereby. It lies upon bonds, whether for the payment of moneys or performance of any other act, upon recog- nizances, and upon judgments and decrees ; and an agreement to vary the terms of a bond, indorsed thereon and signed by the parties thereto but not sealed, with a subsequent sealed agreement, also indorsed, to ex- tend the time during which the bond should be in force, is a sealed in- strument, the last agreement under seal acting upon and giving the force of a specialty to the first parol indorsement. Loring v. Whittemore, 13 Gray, 228. And in Georgia it has been held that an unsealed indorse- ment on a sealed instrument is a contract under seal. Milledge v. Gard- ner, 29 Ga. 700. Debt lies, also, upon statutes where an action of debt is given by statute; and where the statute provides for the payment of a sum of money, or gives a penalty or forfeiture on the doing of a forbidden act, but does not mention any mode of recovering it. 1 Saund. 288, note 1; Browne, Actions at Law, 345; White v. Parkin, 12 East, 578. The official recognizance of a sheriff is not a specialty. Brainerd v. Stewart, 33 Vt. 402. Nor is the statute liability in treble damages of one tenant in common to another, for waste, a specialty, or a penalty within the meaning of the statute limiting actions for penalties to one year. Adams v, Palmer, 6 Gray, 838. And proceedings to enforce a sentence are not a suit to recover a penalty. Commissioners, &c. v. Andrews, 10 Rich. Eq. _(S. C.) 4. A partner’s right to an accounting is not barred in six years where the partnership articles are under seal and contain covenants; and if the statute runs at all against the right to an account, this is by deal- ings in the shape of a showing of balances. Near v. Lowe, 49 Mich. 482. But where the statute prescribes a limitation to actions founded on a specialty, this limitation will of course prevail. Thus in New York, such an action will be barred in twenty years. Devinelle v. Edy, 66 How. Pr. 828. See Wagoner v. Watts, 44 N. J. L. 126, as cited § 145, note. In Maryland, actions on specialties are barred in twelve years, SEC. I1.] SPECIALTIES. 209 tithes for carrying away the corn, the defendant pleaded for the three years last past non dedet, and, for the residue of the time charged, the statute of limitations, the judges held that the statute did not extend to bar the action.1 Again, an ac- tion of debt for an escape was held not to be reached by the statute, because it was not founded upon any lending or con- tract, but was founded on a specialty; namely, on statute law So it is held that actions for duties imposed by statute upon vessels, are founded upon specialty, and so not within the statute of limitations. But where suit was brought to recover the amount of taxes illegally collected, it was held that the suit was barred at the expiration of the period of limitation fixed by the local statute for simple contracts, it not being “an action upon any agreement, contract, or prom- ise in writing.” 4 § 148. But the Liability must be by direct Imposition of the Statute. — There is an important distinction to be observed between a liability directly imposed by the terms of a statute, and one having relation to the statute, but in reality created by the acts of the parties. Thus in the case of the assign- ment of a debt, by the commissioners of a bankrupt, the assignment being under a statute, a plea of limitation would avail; because the debt was created and the original obliga- tion imposed by the act of the parties, and it is a general rule that, when the time of limitation begins to run, nothing subsequently occurring will stop it. So, where the South Sea Company, in whom the estates of the directors were vested by act of Parliament, filed a bill to which the statute of limita- tions was pleaded, it being argued that the claim of the plain- 1 Cro. Car. 513. 2 Jones v. Pope, 1 Saund. 38; Ward v. Reeder, 2 Har. & McH. (Md.) 145;. Lane v. Morris, 10 Ga. 162. 3 Shepherd v. Hills, 32 Eng. L. & E. 533. 4 Richards v. Wyandotte County Commissioners, 28 Kan. 326. The limitation fixed for contracts not under seal operates upon the claim of a county treasurer for fees-for collection of delinquent taxes due him, and not allowed at the proper time. Mathesie v. Knox County Commission- ers, 82 Ind. 172. As to actions to recover penalties for usury, see NoTE following § 166, post. 5 Coply v. Dorckmincque, 2 Lev. 166. 14 210 ACTIONS OF CONTRACT. [CHAP. IV. tiffs was matter of record, and consequently the debt not ‘within the statute, the Lord Chancellor held otherwise, and compared the case to that of an assignee under a commission of bankruptcy, who, though he claims under the bankrupt acts, and also by virtue of the assignment, yet stands in the place of the bankrupt against whom the statute of limitations is pleadable, and so is liable to be barred thereby.1 So as- sumpsit will lie against a trading corporation, upon a bill of exchange, when the power of drawing and accepting is recog- nized by statute.2 So an action of debt for a penalty, due under a by-law made by virtue of a charter, is grounded upon a contract without specialty, and so is barred.? But it was held that the statute of limitations of New Hampshire, which in respect to specialties is a transcript of the statute of 21 James I., did not operate as a bar to an action of debt against a stockholder of a bank, under a provision of its charter im- posing a personal responsibility upon the shareholders for the notes of the institution, in case these should be dishonored.t 1 South Sea Co. v. Wymondsell, 3 P. Wms. 14. 2 Murray v. East India Co., 5 B. & Adol. 204. In Georgia it is held that § 2916 of the Code, providing that suits for the enforcement of rights arising under statutes, acts of incorporation, ‘‘ or by operation of law,” should be barred in twenty years, was not intended to include cases of ‘ implied assumpsit. Harris v. Smith, 68 Ga. 461. 8 Master, &c. v. Loder, 6 Eng. L. & E. 309. 4 Bullard v. Bell, 1 Mason (C. C.), 2438. In this case Story, J., said: ‘«T agree at once to the position, that the bills of the bank are to be con- sidered originally as the debts of the corporation, and not of the cor- porators; and, except from some special provision by statute, the latter cannot be made answerable for the acts or debts of the former. They are altogether in law distinct persons, and capable of contracting with each other. But the corporators are not strangers to the corporation. On the contrary, the law contemplates a privity between them; and upon that privity has created an obligation on the corporators, under certain circumstances, to pay the debt of the corporation. Nothing can be better settled than that an action of debt lies for a duty created by the common law, or by custom. A fortiori it must lie, where the duty is created by statute. . . . Whatever is enjoined by a statute to be done creates a duty on the party, which he is bound to perform. The whole theory and prac- tice of political and civil obligations rest upon this principle. When therefore a statute declares, that, under certain circumstances, a stock- holder in a bank shall pay the debt due from the bank, and those circum- SEC. II.] SPECIALTIES. 211 ‘And, under a statute provision that “actions for a statutory penalty shall be commenced within two years next after the cause of action accrued,” it was held that the liability of trustees and corporators of insurance companies, fixed by a stances occur, it creates a direct and immediate obligation to pay it. The consideration may be collateral or not, but it is not a subject-matter of inquiry, and to deny that it is a duty on the stockholder to pay the money is to deny the authority of the statute itself; for a duty is nothing more than a civil obligation to perform that which the lawenjoins. Here then the law has declared, that the stockholders shall be liable to pay a specific sum, and it imposes on them a duty so to do. How then can the court say that debt does not lie, since there is a duty on the defendant to pay the plaintiff a determinate sum of money ? There is no room, under this view of the case, for entertaining any question as to collateral under- takings. The law has created a direct liability, — a liability as direct and cogent as though the party had bound himself under seal to pay the amount, in which case debt would undoubtedly lie. The law esteems this an obliga- tion created by the highest kind of specialty. Indeed if debt would not lie in this case, it is inconceivable how assumpsit could. There is no pretence of any express promise; and if a promise is to be implied, it must be be- cause there exists a legal liability, independent of any. promise sufficient to sustain one. Now, the very notion of a collateral undertaking is, that there exists no legal liability independent of the promise to create a duty. And if there exists a duty sufficient to raise a promise, then it is sufficient to sustain an action for debt.’? See Van Hook v. Whitlock, 3 Paige, 409; Atwood v. R. I. Agric. Bank, 1 R. I. 876; Jordan v. Robinson, 15 Me. 167; Lane v. Morris, 8 Ga. 162. In New York (2 Rev. Stat. 298, § 31) it is provided that “an action upon any statute made or to be made for any forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this state, shall be com- menced within three years after the offence committed or the cause of action accrued, and not after; and where an action was brought against a stockholder of an incorporated company, the charter of which provided that the stockholders should be liable for its debts, and that a creditor might, after judgment obtained against the corporation and execution returned unsatisfied, sue any stockholder, it was held that the limitation of three years did not apply (overruling Freeland v. McCullough, 1 Denio, 414); but that the liability, not being created by the statute, was within the general provision limiting to six years all actions of account, assump- sit, or on the case founded on any contract or liability express or implied. Corning v. McCullough, 1 N. Y. 47. The form of the action in this case was assumpsit, while in Bullard v. Bell, supra, it was debt. Jones, J. who gave the opinion, discussed the nature of the liability created by the statute at much length, and expressed views not easily to be reconciled with the doctrine of the last mentioned case. 212 ACTIONS OF CONTRACT. [CHAP. IV. general law, was imposed not as a contract but as a statutory penalty! And the principle governing the cases seems to be that the statute does not bar the remedy where the liability is created not merely by the act of the parties but by the positive provisions of law.? (b) Judgments. § 149. Actions founded on, not barred. — Of Courts not of Record. — As the statute of limitations is not pleadable to an action founded upon a statute liability, so it is not a bar to an action to enforce a judgment of court,’ although in many 1 Gridley v. Barnes, 103 Il. 211. 2 Dixon v. Railroad Co., 1 Mackey, 78. 8 Todd v. Crumb, 5 McLean (C.C.), 172; Dudley v. Lindsey, 9 B. Mon. 486; Mitchell v. Mitchell, 8 Humph. (Tenn.) 359; Reddington v. Julian, 2 Carter (Ind.), 224. In an action on the case against a sheriff, for that he levied a sum of money upon a fieri facias, at the suit of the plaintiff, and did not bring the money into court at the day of the return of the writ, the court held that if the fieri facias had been returned then, the action would have been grounded on the record, and it being the sheriff’s fault that the writ was not returned, that the judgment was the foundation of the action. Cockram v. Welby, 1 Mod. 246. In Arkansas the statute cannot be pleaded to a scire facias to revive a judgment, because it is not the commencement of an action. Brown v. Byrd, 5 Eng. (Ark.) 533, See also Evans v. White, 7 Eng. (Ark.) 188. The rule is otherwise in Mary- land, Beanes v. Hamilton, 3 Gill, 275; and in Indiana, Simpson v. Lassalle, 4 McLean (C. C.), 352. A judgment under the Mill Acts of Maine is not within the statute. Knapp «. Clark, 80 Me. 244. In Maine, a judgment of the court of county commissioners is barred in six years. Woodman v. Somerset, 87 Me.29. A decree of the Orphans’ Court fixing the amount in the hands of an executor, is in the nature of a judgment, and not within the statute. Burd v. M’Gregor, 2 Grant (Penn.), 353. But in Mississippi it is held that a decree rendered in the Probate Court in favor of a distributee, against the administrator, is within the statute. Dil- worth v. Carter, 32 Miss. 206. Where an act setting off one town from another makes the town set off liable for a proportion of the old town’s liabilities, including a judgment, the limitation begins to run from the payment of the judgment. Mt. Desert v. Tremont, 75 Me. 252. In Trenouth v. Farrington, 54 Cal. 278, it was held that the statute begins to run from the entry of the judgment and not from its rendition. It was said to have been resolved that the statute was not a good plea against an attorney that brings his action for fees, because they depend upon a record and are certain. Cockram v. Welby, 1 Mod. 246. In the case of Rudd v. Birkenhead, Carth. 144, no such objection was made to SEC. II.] SPECIALTIES. 213 states, a statute limitation has been created to actions founded on judgments.!| But it is held that where one of several de- fendants in judgment was not served with process the statute will run in his favor. It seems that a warrant of attorney to confess judgment is not a specialty which takes a case founded on it out of the statute’ The question has been discussed whether this rule applies to judgments of a court not of record. In New York, upon error on certiorari to a justice’s court, where the action in the court below was founded upon a judgment rendered before another justice, six years before the present suit, and the only question raised was whether a suit on a judgment in a justice’s court was barred by the statute of limitations, the court said; “ Whether a justice’s court is strictly a court of record, it is not material to determine in this case; for if it be not, it is settled that a judgment rendered in it is conclusive evidence of a debt, and the plea, in an action of assumpsit by an attorney; but in Oliver v. Thomas, 3 Lev. 367, where assumpsit was ‘brought for fees, and money expended, and labor and pains in prosecuting divers suits, the defendant pleaded the statute, whereupon the plaintiff demurred; and it was argued for the plaintiff that this action being by several counts or declarations, whereof one only was for fees, the statute was not pleadable to that count for fees only, because it arises upon matter of record, namely, his being attorney of record. But it was held that the statute was pleadable to the count for fees since the fees were not of record, and a case was cited where it had been so adjudged, and so judgment was given for the de- fendant. It is held that the limitation will not run in favor of the maker of a promissory note executed to the clerk of the court for prop- erty sold in the progress of a suit in court, while the note is in the custody of the law. Tyner v. Fenner, 4 Lea, 469. 1 So in North Carolina, see Butts v. Patton, 11 Ired 262; and in Mary- land. In the latter state it is held that the statute begins to run on a judgment of condemnation in an attachment case from the date of the judgment, and is a bar to an execution issued thereon after the lapse of twelve years from such date. Johnson v. Foran, 59 Md. 460. And the mere issuing of an execution within the period of twelve years interposes no bar to the operation of the statute. Johnson v. Hines, 61 id.122. Un- der the statute in North Carolina (Code C. P. § 31), it is held that a partial payment made on a judgment, voluntarily, within ten years preceding a motion for execution thereon, does ‘not remove the statute bar. McDonald v. Dickson, 87 N. C. 404. See Johnson v. Jones, id. 893; Daniel v. Laugh- lin, id. 433. 2 Bruen v. Bokee, 4 Denio, 56. 8 See Clarke v. Figes,2 Stark. 284; Kempner v. Laney, 14 Phila. 646. 214 ACTIONS OF CONTRACT. [cHapP. Iv. the merits of such a judgment, while it remains in force, can- not be overhauled or controverted in an original suit at law, or in equity; and it is as final, as to the subject-matter of it, to all intents and purposes as a judgment in this court.” It was therefore concluded that an action of debt upon a judg- ment in a justice’s court was not barred by the statute ; and so it was held in New Hampshire.2 But in South Carolina, . it was held that a judgment of a court of justice for the trial of causes small and mean, is within the operation of the stat- ute; the reason assigned being that such a judgment is not a matter of record. In Arkansas, the statute limits the time within which execution may issue on the judgment of a jus- . tice of the peace to five years. But this statute does not apply to an action on the judgment. § 150. Foreign Actions on, generally barred. — The general rule does not apply to foreign judgments,® which being only prima facie evidence of debt are considered, as a foundation of action, to have the effect of parol evidence merely.® So, it 1 Pease v. Howard, 14 Johns. 479. 2 Maburin v. Bickford, 8 N. H. 54. 3 Griffin v. Heaton, 2 Bail. 58. In Massachusetts and New York, actions founded on judgments of a justice of the peace are now barred by statute. Bannegan v. Murphy, 18 Met. 251; Gray v. Cheeseman, 6 Gray, 515; Carshore v. Huyck, 6 Barb. 583. It was held that although the Marine Court of the City of New York was for certain purposes a court of record, yet it was not such in the exercise of its jurisdiction be- tween party and party, and so that the statute of limitations would apply to actions brought upon its judgments. Lester v. Redmond, 6 Hill, 590. 4 Hicks v. Brown, 38 Ark. 469. Where a decree pro confesso is passed against non-resident defendants for want of appearance and answer, and other defendants plead the statute, the plea does not enure to the benefit of those not pleading it. Simms v. Lloyd, 58 Md. 477. 5 Darby v. Mayer, 11 Wheat. 469; Piatt v. Oliver, 2 McLean (C. C.), 267. 6 Pease v. Howard, 14 Johns. 479; Duplex v. DeRoven, 2 Vern. 540. See Walker v. Witter, Doug. 1. This was the case of an action upon a judgment obtained in the Supreme Court of Jamaica, and Lord Mansfield said: ‘¢ The question was brought to a narrow point ; for it was admitted on the part of the defendant, that indebitatus assumpsit would have lain, and on the part of the plaintiffs, that the judgment was only prima facie evidence of the debt.’’ This being so, the judgment was not a specialty, SEC. II. ] SPECIALTIES. 915 was held by the Supreme Court of the United States, that the statute of limitations of Georgia might be pleaded to an action but the debt only a simple contract debt. In Harris v. Saunders, 4 Barn. & C. 411, which was assumpsit in King’s Bench, on a judgment obtained in one of the superior courts of Ireland, the plaintiff having obtained a verdict, a rule nisi had been obtained for arresting the judgment upon the ground that, since the Union, assumpsit would not lie on such a judgment. The case of Otway v. Ramsay, Strange, 1090, being in error from the Court of King’s Bench in Ireland, was cited; by which it appeared to have been decided, that before the Union a judgment rendered in England had not the force and effect in Ireland of a judgment of record in that country. Abbott, C. J., said: ‘* We do not say that the action of debt may not be maintained on an Irish judgment; but, if it be a record in this country, it must have all the consequences of a record; it must bind lands, and rank as a specialty debt in the distribution of personal assets. I have inquired . . . whether, in marshalling assets, it is considered to be entitled to priority as an English judgment; and the result of that inquiry is, that it is not.’? And the court were of opinion that a judg- ment obtained in Ireland after the Union was not a record in England. In Hay v. Fisher, 2 M. & W. 722, which was an action to recover the amount of a bill of exchange, drawn by the plaintiffs and accepted by the defendants in Scotland, more than six years before the commencement of the action; the plaintiffs, to avoid the statute of limitations, introduced a count setting forth the drawing and acceptance of the bill, the making and reg- istering of a protest of non-payment in the Scotch court, and the issuing and execution of letters of horning and poinding on the defendant, charg- ing him to make payment of the amount of the bill and interest to the plaintiffs, according to the law of Scotland, and his default thereto; and al- leging that, by virtue of the premises, the defendant became liable to pay the plaintiffs the amount of the bill with interest, and being so liable promised to pay the same. At the trial,a Scotch advocate, who was examined as to the proceedings necessary in such a case, by the law of Scotland, to bar the statute of prescription, testified that, in Scotland, a bill of exchange is usu- ally protested on the third day of grace, or against the acceptor within six months from that day, and that the protest may be immediately recorded in the books of the Court of Session against the debtor. ~ If no action is raised or execution issued within six years from the last day of grace, the bill is affected by the statute of limitations; but if diligence is raised and executed, or action commenced, within the six years, the statute of limi- tations is barred, and the party may commence an action at any time within forty years. The witness described the forms of the process of diligence by protest, — registering the same in the books of court, and the issuing and execution of the letters of horning and poinding; and stated that the diligence is complete so as to bar the prescription when the debtor has been charged by the messenger to make payment; of which 216 ACTIONS OF CONTRACT. [cHapP. Iv, in that state founded upon a judgment rendered in South Carolina,! and, in New York, that the statute was a good plea to an action of debt brought in that state on a judgment ren- dered in Connecticut.2 It is settled in New Hampshire that a judgment of a justice of the peace rendered in another state is not conclusive evidence of a debt, but must be considered as standing upon the same ground as any foreign judg- ment, leaving the merits of the case open to discussion and examination. charge the evidence is the return of the officer written on the letters of horning. He said that the original process recorded in court was held to be a judgment, and that judgment was complete upon the registra- tion. It was held, that the declaration did not disclose a sufficient cause of action as upon a judgment in Scotland, since it did not aver that the registration was equivalent to a judgment or decree, or that there was a judgment or decree. In England, the prescription of Scotland is regarded as the prescription of a foreign country, and if simple contracts made in Scotland be sued in England the English statute will in general apply. Chitty & Hulme on Bills, 618. Thus, though by the law of Scotland where the contract is made, a party may have forty years to proceed on it, he would in England have only six years. British Linen Co. v. Drum- mond, 10 Barn. & C. 908. See § 347, post. 1 McElmoyle z. Cohen, 18 Peters, 312. 2 Hubbell v. Coudrey, 5 Johns. 182; and see to the same point, Bissell v. Hall, 11 id. 168; Brown v. Parker, 28 Wis. 21. In Richards v. Bickley, 13 S. & R. 395, the court in Pennsylvania held that actions of debt on foreign judgments were not within the limitation. The case of Duplex v. DeRoven, 2 Vern. 540, was said to be the first English case where the statute was held pleadable to a foreign judgment, and there, because the origin of the debt was simple contract and the only action that could be maintained was indebitatus assumpsit or insimul computassent. 8 Robinson v. Prescott, 4 N. H. 450. But in Thomas v. Robinson, 3 Wend. 267, the court seems to consider such judgments as conclusive evidence of debt, wherever it is made to appear that the justice had juris- diction. It is said that a judgment of a justice of the peace in another state is perhaps not technically a specialty; but it is thought that there is as much reason why it should be excepted from the operation of the statute as a bond, and that the settled construction of the statute is that it applies solely to actions of debt founded upon contracts in fact, as dis- tinguished from those arising by construction of law. And see remarks of Parker, C. J., in Mahurin v. Bickford, 8 N. H. 54. Under the statute in Massachusetts such a judgment is not considered a judgment of a court of record. Mowry v. Cheeseman, 6 Gray, 515. See § 149, ante. SEC. II. ] SPECIALTIES. 217 § 151. But made Specialties by Statute or Construction. — The rule that actions on foreign judgments will be barred in the same time as actions founded on simple contracts prevails in those states in which the statute 21 James I. c. 16, § 3, is in force, in the absence of statutory provision on the subject. Butin many states it is now provided by statute that actions founded on judgments of the federal courts and of the courts of record of other states shall be placed upon the foot- ing of specialties ;} and it has been held in some of the states, even in the absence of a statutory provision saving foreign judgments, that such judgments are conclusive, and operate as a merger of the original cause of action.2 And the court in Ohio has held that a foreign judgment, even of a justice of the peace, is a specialty within the meaning of the statute, as being a judicial proceeding within the intention of the con- stitution of the United States, Art. 4, Sec. 1.8 (c) Awards. § 152. Sealed, are of the Nature of Specialties. — The statute cannot be pleaded to defeat an action of debt on an award under the hand and seal of arbitrators, for although 1 Such provisions occur in the statutes of New York, Massachusetts, Vermont, Maine, Michigan, Wisconsin, Iowa, Minnesota, Oregon, Cali- fornia, Alabama, Arkansas, Nevada, and perhaps in other states. 2 Napier v. Gidiere, Speers (Eq.), 215, and see Keith v. Estill, 9 Porter (Ala.), 669; Clay v. Clay, 13 Tex. 195; Ried v. Boyd, 13 id. 241; Moore v. Paxton, 1 Hempst. (C. C.) 51; Latourette v. Cook, 3 G. Greene (Iowa), 593. 8 Stockwell v. Coleman, 10 Ohio St. 33: In Mississippi, by statute, actions founded on judgments and decrees of other states are barred, Boyd v. Barrenger, 23 Miss. 269. So in Arkansas, Brian v. Tims, 5 Eng. 597. And in Illinois, Baker v. Brown, 18 Ill. 91; Van Alstine v. Lemons, 19 id. 394. In Texas such judgments are barred in ten years. Allison v. Nash, 16 Tex. 560. In Maine it was held that an action on a judg- ment of the Supreme Court of New Brunswick, though a foreign judg- ment and but prima facie evidence, was nevertheless not barred by the statute where the original cause of action was a witnessed promissory note. Jordan v. Robinson, 15 Me. 167. And the words of the Statute, 1821, c. 62, § 7, ‘limiting actions of debt grounded on any contract without specialty,” were held not to include actions on contracts implied by law. 218 ACTIONS OF CONTRACT. [cHaP. Iv. such an award may not for all purposes be considered a specialty, that name being given only to an instrument under the hand and seal of the party bound by it; yet it has been considered as being of the nature of a specialty so far as to be within the intent of the statute of limitations. For the purpose of the statute being to limit the time for bringing actions on simple contracts, without writing under hand and seal, the prosecution of which, long after the cause of action had accrued, was the occasion of perjury in witnesses, this reason will not apply to a case so easily to be ascertained as an award under the hand and seal of the arbitrator! And the statute cannot be pleaded in an action of debt on such an award, even though the submission be not under seal; and it seems that if the submission be under seal, the award need not be.” (d) Indentures of Lease. § 153. Actions on, not barred.—It is settled that debt on an indenture reserving rent is not within the statute,’ this being held applicable only to rent upon a parol lease.t Thus where the plaintiff declared upon a lease by indenture for twenty years, rendering rent, and in debt for arrearages of rent, it appeared that such arrearages were due six years and more before the action brought, and the court finally agreed that the action of debt being upon a lease by indenture was not limited to any time by the statute. The case was likened to that of a rent charge, which is founded upon a deed, and not within the statute of limitations.’ So in an action of cov- 1 Kyd on Awards, 298. 2 Smith v. Lockwood, 7 Wend. 241; Rank v. Hill, 2 W. & S. 56; Hodsden v. Harridge, 2 Saund. 150. An award at common law cannot be impeached merely by the allowance by the arbitrators of a claim barred by the statute of limitations. Pierce v. Pierce, 60 N. H. 355. 8 Pease v. Howard, 14 Johns. 479. 4 Buffum v. Deane, 4 Gray, 385. This case arose upon the construction of Rev. Sts. Mass. c. 120, § 1, which provided that all actions for arrears of rent should be commenced within six years next after the cause of ac- tion accrued, and not afterwards. The court said: ‘‘ We are of opinion that this limitation does not apply to an action for rent reserved in a sealed lease, but only to actions founded on contracts not under seal.” 5 Freeman v. Stacy, Hut. 109. See also Hodsden v. Harridge, 2 Saund. SEC. II.] SPECIALTIES. 219 enant on an indenture of lease, it was conceded that the claim for the rent demanded, having been created by deed, was not within the statute of limitations ; and the only point was whether payment was to be presumed from lapse of time. The words “debt for arrearages of rent” are sufficiently sat- isfied by taking them to intend arrearages of rent upon a parol demise. So the statute is a bar to an action by one tenant in common against another on an account.? , (e) Bonds. § 154. Actions on, not barred: by Surety against Principal: for Contribution.— Actions upon bonds, these being special- ties, are not liable to be barred by the statute, although under certain circumstances the law will presume that a bond has been satisfied.2 Where the penalty of a bond had been paid 150; Collins v. Goodall, 2 Vern. 235; Stackhouse v. Barnston, 10 Ves. 453; Kane v. Bloodgood, 7 Johns. Ch. 90. The act of Pennsylvania of 1713 for the limitations of actions is not a bar to an action for the recovery of rent reserved by indenture. Davis v. Shoemaker, 1 Rawle, 135; McQuesney v. Hiester, 33 Pa. St. 435. The statute is not a bar to the right to distrain for rent. Vechte v. Brownell, 8 Paige, 212. 1 Bailey v. Jackson, 16 Johns. 210. See also Davis v. Shoemaker, 1 Rawle, 135. 2 Kane v. Bloodgood, 7 Johns. Ch. 90; Elder v. Henry, 2 Sneed, 81. Where a bill was filed by one tenant in common, after a partition, against the other who had been in exclusive possession, for an account of the rents and profits, it was held that the statute of limitations did not be- gin to run against the demand until after the partition; overruling Wag- staff v. Smith, 2 Dev. Eq. 264; Wagstaff v. Smith, 4 Ired. Eq. 1. 8 Clark v. Hopkins, 7 Johns. Ch. 556; Kingston v. Horner, Cowp. 102; Summerville v. Holliday, 1 Watts, 507; Brown v.,Houdlette, 10 Me. 399. In Maryland, actions on guardians’ bonds as well as on bonds of execu- tors and administrators are limited by statute, and the statute begins to run from the time of passing the bonds, that is, of their approval by the Orphans’ Court, and not from the filing or the date. State v. Miller, 3 Gill, 335. In the same state the colonial statute of 1715, c. 23, provided that no specialty whatsoever should be good and pleadable, or admitted in evidence, against any person or persons, after the principal debtor and creditor had both been dead twelve years, or the debt or thing in action was above twelve years standing. See Richards v. Maryland Insurance Co., 8 Cranch, 84; Watkins v. Harwood, 2 Gill & J. 8307; Carroll v. War.’ ing, 3 id. 491; Mullikin v, Duval, 7 id. 355. 220 ACTIONS OF CONTRACT. [ CHAP. IV. by one obligor, who thereupon brought assumpsit against his co-obligor for contribution, it was considered doubtful by Lord Kenyon whether the statute of limitations would apply to the case, since the demand arose under a deed; and it had been held that an action on such a debt was entitled to the same limitation as an action on the deed itself. But upon the same question arising in the Supreme Court of Massa- chusetts, Parsons, C. J., said he was satisfied that a plea of the statute was good, since the action being assumpsit by a surety on a bond who had paid part of the debt, against the principal, the case was not to be distinguished from a case where action is brought by a surety on a promissory note against the principal. In such a case it was not to be denied that the statute would be a good plea. So, in the case under consideration, he held that the action was not founded on the bond itself, but on a promise or simple contract for which the execution of the bond was the consideration? (f) Actions for Legacies. § 155. Not barred, as being to enforce Trusts.—It is set- tled that the statute of limitations of 21 James I. does not apply to ordinary actions for legacies. This has been a rule always applied by the English common-law and ecclesiastical courts ;8 and courts of equity refuse to apply the statute to such actions for the reason that an executor stands in the relation of a trustee, and, while the trust still subsists, a lim- 1 Cole v. Saxby, 3 Esp. 159. 2 Penniman rv. Vinton, 4 Mass. 276. 8 Perkins v. Cartmell, 4 Harr. 270. Actions for legacies are barred by statute in Louisiana in ten years. Nolasco v. Lurty, 13 La. Ann. 100. In Massachusetts the statute provides that the limitations imposed on credit- ors of the estates of deceased persons shall not apply to actions brought at any time by legatees to recover legacies against executors, or administra- tors with the will annexed. Pub. Sts. c. 136,§19. In Alabama suits against the sureties of executors are barred in six years. But the limita- tion is not to be reckoned from the date of the decree of the probate court merely ascertaining the amount due the legatee, but not making a valid order for its payment; nor from the date of a decree authorizing him to file a petition to propound his claim. Bryan v. Alexander, 4 Woods (C. C.), 529. SEC. II] SPECIALTIES. 221 itation is not permitted to run.! Where an executor was di- rected to set aside a certain sum and pay the interest thereof to the testator’s wife during her life, and at her decease to divide the principal sum among several persons named, but the executor did not set aside the sum, but gave the widow his personal bond to pay her the interest thereof, and, after her death, failed to pay the legacies to the legatees named ; it was held, that an action in favor of the legatees against a surety on the executor’s bond, brought more than twenty years after the failure of the executor to set aside the sum named, but within twenty years from the death of the wife, was not barred; since the duty of paying the legacies had arisen within twenty years, and a waiver of the first breach of the bond would not prevent the legatees from suing on a subsequent breach The acceptance of a devise of land 1 Thompson v. M’Gaw, 2 Watts, 161; Prior v. Horniblow, 2 Y. & C. 207. And see post, § 335. 2 Thayer v. Keyes, 186 Mass. 104. By the statute 3 and 4 Wm. IV. c. 47, § 40, the time within which to recover a legacy was limited to twenty years after the present right to receive the same had accrued, and the provision was held to apply to all legacies whether charged upon land or not (see Bullock v. Downes, 9 H. L. Cas. 1; Sheppard v. Duke, 9 Sim. 567), and to residuary property. Prior v. Horniblow, 2 Y. & C. 200. By the statute 37 and 38 Vict. c. 57, § 8, the limitation is twelve years. Usually and except as to after-acquired. assets (Adams v. Barry, 2 Coll. 285; Reed v. Fenn, 35 L. J. Ch. 464), the statute begins to run at the ex- piration of one year from the testator’s death, from which time the legatee is entitled to interest. Earle v. Bellingham, 24 Beav. 448; Turner v. Buck, L. R. 18 Eq. 301. But, as the testator’s year is allowed only for convenience, it may be otherwise where there are clearly assets, or where the will directs earlier payments. Gartshore v. Chalie, 10 Ves. 13; Spur- way v. Glynn, 9 Ves. 483; Shirt v. Westby, 16 Ves. 393; Williams on Executors (6th ed.), 1266. As against a residuary legatee, the time begins to run as soon as he has an opportunity of ascertaining what the clear residue is, and of receiving the same. Prior ». Horniblow, supra ; Binns v. Nichols, L. R. 2 Eq. 257; Larkins v. Phipps, W. N. (1873) 207. If, however, the legacy is so held by an executor as to be a trust, the rules applicable between trustee and cestui que trust apply, and the legatee will not usually be barred by any lapse of time. Phillips v. Munnings, 2 Myl. & Cr. 309; Byrchall v. Bradford, Madd. & Geld. 18, 285; Dix v. Burford, 19 id. 409; Willmott v. Jenkins, 1 id. 401; Brougham v. Poulett, 19 Beav. 183. See § 330, post. And if the executor sets apart and retains the money for the payment of a legacy, he constitutes himself a trustee 222 ACTIONS OF CONTRACT. [cHapP. Iv, charged with the payment of a legacy creates a personal liability for its payment on the part of the devisee, and in an action on such liability the statute bar applicable to actions on simple contracts applies.1 (g) Presumption as to Specialty Debts. § 156. Presumed satisfied after twenty years. —It is en- acted by the English statute 38 and 4 Wm., LV. c. 42, that all actions upon specialties shall be commenced within twenty years after the cause of action accrues, and not after2 But even if the statute be not pleaded, payment after twenty years may be presumed in any case ;8 for the artificial presumption has long been established, that where payment of a bond or other specialty is not demanded for twenty years, and there has been no circumstance to show that the debt is still acknowl- for this purpose as distinctly as if the testator had directed him to pay the legacy over to another person in trust for the legatee, and the payment had been made. Tyson v. Jackson, 30 Beav. 304, 886; Dover, Ex parte, 5 Sim. 500; Bullock v. Downes, 9 H. L. Cas. 1. The general rule in this coun- try, in the absence of statute, is that there is no presumption of payment contrary to the duty of an executor, and that an action may be brought at any time to recover a legacy, Kent v. Dunham, 106 Mass. 586; Brooks v. Lynde, 7 Allen, 64. But it is a presumption of fact that after the lapse of twenty years a legacy has been paid. Andrews v. Sparhawk, 13 Pick. 393; Kingman v. Kingman, 121 Mass, 249. And after a settlement be- tween the executor and legatee, and demand for payment, the trust is so far ended that the statute runs. Young v. Cook, 30 Miss. 320. 1 Etter v. Greenawalt, 98 Pa. St. 422. 2 In Massachusetts, and other states, personal actions on contracts not otherwise limited by statute must be brought within twenty years after the cause of action accrues. Pub. Sts. c. 197, § 7. And so actions for the recovery of land. Pub. Sts. c. 196, §1. In the same state, following the statute 3 and 4 Wm. IV. c. 42, it is provided that judgments and decrees of a court of record shall be presumed to be paid and satisfied at the expira- tion of twenty years after the judgment or decree is rendered. Pub. Sts. c. 197, § 23. 3 Best on Presumptions, 188. If an acknowledgment has been made in writing by the debtor, charging him in direct terms, or by his agent, or if there has been a part payment, or part satisfaction, of the principal and interest then due, the action may be brought within twenty years next _after the time of such acknowledgment, part payment, or part satisfaction. St. 8 and 4 Wm. IV. c. 42; Mansel on Limitations, 25. SEC. III.] NOTES AND BILLS. 228 edged, the jury are to presume payment.! It is held that this presumption arises and may be a bar, whether or not the party availing himself of it has resided in the state continu- ously during the twenty years.2, The presumption thus cre- ated is a presumption of fact, and it is held that any legal evidence having a tendency to show that, in fact, the judg- ment has not been paid or satisfied, is competent to rebut it.? SECTION ITI. NOTES AND BILLS. § 157. Limitation runs from the Date of the Note: Mortgage Notes. — If a promissory note is made payable in money, on demand, the statute commences running from the date of the note, without a special demand of payment.t The rule is the same when such note bears interest.6 If the note is not 1 This doctrine, now so well settled and so often recognized that it is not requisite to cite the authorities which sustain it, was not a part of the ancient law, and, according to Buller, J., originated with Lord Hale. Oswald v. Leigh, 1 D. & E. 271. See Thayer v. Keyes, 186 Mass. 104, as cited, ante, § 155. 2 Sanderson v. Olmsted, 1 Chand. (Wis.) 190. ® Brewer v. Thomes, 28 Me. 81; Knapp v. Knapp, 134 Mass. 353; Walker v. Robinson, 136 id. 280. 4 Norton v. Ellam, 2 M. & W. 461; Presbrey v. Williams, 15 Mass. 198; Little v. Blunt, 9 Pick. 488; Codman v. Rogers, 10 id. 112; Easton v. McAllister, 1 Mo. 662; Caldwell v. Rodman, 5 Jones (N. C.), 189; Ruff v. Bull, 7 Harr. & J. 14; Peaslee v. Breed, 10 N. H. 489. Soin Scotland it is held that the time limited runs from the date of a demand note: Stephen- son v. Stephenson, Fac. Coll. 639 (1807); the expression in the Scottish statute being ‘‘ from the term at which the sums in the note become exi- gible.’ 1 Bell’s Com. 305; Wilks »v. Robinson, 8 Rich. (S. C.) 182. See Hill v, Henry, 17 Ohio, 9; Palmer v, Palmer, 86 Mich. 487. A provision to pay a note ‘‘ at any time within six years’? is a promise to pay on de- . mand, though not in itself a note, and the statute runs from the date of the promise. Young v. Weston, 39 Me. 492. When a note is indorsed, demand and notice should be made within reasonable time, and the statute begins to run in favor of the indorser after the lapse of such reasonable time. Mudd v. Harper, 1 Md. 110. And see § 187, post. 5 Norton v. Ellam, supra, Bartholemew v. Seaman, 25 Hun, 619; and 224 ACTIONS OF CONTRACT. [CHAP. IV. to draw interest during the life of the promisor, it will sup- port an action brought upon it immediately after it is given, and consequently the statute limitation begins to run from its date and is not postponed to the death of the promisor.! No grace is allowed on a demand note, and if a note have no date the statute runs from the time of its delivery.? So it has been held that a receipt for money by which the person receiving it undertook to return it with interest, “when called on” so to do, creates a cause of action from its date, and that the statute limitation runs from that time, for since interest may be demanded from the date of the receipt it is then due and payable. So where a receipt was given for notes to be collected and applied to the payment of a note in suit, it was held that the. limitation ran from the date of the receipt.t And a promise to return a specific sum, borrowed in checks, on demand, was held to be barred by the statute when no demand had been made within six years from the date of the promise It has already been stated that although a note secured by mortgage may become barred by limitation, the lien created by the mortgage remains good; and although a personal judgment against the maker may be barred, this will not prevent a decree in the nature of a decree in rem for a sale of the security. so when the note is not negotiable, McMullen v. Rafferty, 24 Hun, 363; Andress’s Appeal, 99 Pa. St. 421; Milne’s Appeal, id. 483. Butsee Payne v, Gardiner, 29 N. Y. 146. The statute of limitations does not begin to run upon a claim until the principal, or at least some separate and distinct portion of the principal, becomes due and payable, and then only upon such distinct and separate portion. The interest accruing from. year to year is not separated from the principal demand, and consequently the statute does not begin to run upon it until the principal is barred. Graf- ton Bank v. Doe, 19 Vt. 463; Ferry v. Ferry, 2:Cush. 92; Henderson »v. Hamilton, 1 Hall (N. Y.), Sup. Ct. 314. 1 Newman ». Kettelle, 13 Pick. 418. 2 Smith v. Bythewood, 1 Rice, 245; Byles on Bills, 342. 8 Darnell v. Magruder, 1 Harr. & Gill (Md.), 439. * Swift v. Lanier, 1 Hill (S. C.), 31; Dawley v. Wheeler, 52 Vt. 574. 5 Laforge v. Jayne, 9 Pa. St. 410. ® Buckner v. Street, 15 Fed. Rep. 865. See § 140, ante, note and cases eited. SEC. III.] NOTES AND BILLS. 225 § 158. Rule applied to Insurance Notes. — It has been held that a note given as a part of the guaranty capital of a mutual insurance company, and payable at such times and in such portions as the directors may require, but the whole payable in any event, is due from its date, and is barred in six years.! But a premium note given as the basis of assessments for losses, and payable in such portions and at such times as may be required to pay the losses, is due only upon loss and assess- ment therefor, and the statute does not begin to run till that time.2 For such a note is a deposit note, by which the maker, in consideration of a policy of insurance issued to him, prom- ises to pay to the insurance company the whole or any part of the note when required, and he is not bound to pay until such requisition is made upon him and the other makers of like notes. And the beginning of suit upon such a note before such requirement would not be a demand, as in the case of ordinary promissory notes2 The rule is applied to a guaranty note, subject in a like manner to assessment.* § 159. Notes payable in a certain Time after Demand, or after Sight or Notice. —In the case of a note made payable so many days after demand, the limitation begins to run only from the time of the demand, which must be made within a reasonable time from the date of the note. What is to be considered a reasonable time for this purpose does not appear 1 Bell v. Yates, 33 Barb. 627; Colegate v. Buckingham, 39 id. 177; Howland v. Edmonds, 24 N. Y. 307, reversing the decision in 33 Barb. 433. But see Hope Ins. Co. v. Weed, 28 Conn. 51. 2 Savage v. Medbury, 19 N. Y. 832; Howland v. Edmonds, 24 N. Y. 807; Sands v. St. Johns, 36 Barb. 628; Howland v. Cuykendall, 40 id. 820; Bigelow v. Libby, 117 Mass. 359. § Bigelow v. Libby, supra. * Hope Mut. Ins. Co. v. Perkins, 2 Abb. App. Cas. 883; Hope Ins. Co. v. Weed, 28 Conn. 51. 5 Wenman v..Mohawk Ins. Co., 18 Wend. 267; Thorpe v. Coombe, 8 Dowl. & Ry. 347. See also Richman v. Richman, 5 Halst. 114; Little v. Blunt, 9 Pick. 488; Codman v. Rogers, 10 id. 112; Taylor v. Witman, 3 Grant (Penn.), 188; Brown v. Brown, 28 Minn. 501. Generally, when the right of action depends upon some act to be done by the plaintiff, as the making of a demand, he cannot, by failing to do such act, prevent the statute from running. Ball v. Keokuk Railway Co., 62 Iowa, 751. 15 226 ACTIONS OF CONTRACT. [CHAP. IV. to be settled by any rule of law and must depend upon the circumstances of each particular case.1 If no cause for delay be shown, it would seem reasonable to require the de- mand to be made within the time limited by the statute for bringing action,? since there is the same reason for hasten- ing the demand that there is for hastening the commencement of the action.2 Where a note was made payable twenty-four months after demand, and it was first presented for payment within six years after the bringing of action, it was held that the statute was not a bar, although the note had been made more than six years before action brought. Upon the same principle, in the case of notes or bills payable “after sight,” or “ after notice,” the statute does not begin to run but from the time of presentment or notice. And such presentment or notice must be made within a reasonable time. There is a difference to be observed between a bill or note payable at so many days after date, and one drawn payable so many days after sight. In the former case the bill must be presented at or before its maturity ; in the latter, it is sufficient if it be pre- 1 Stroman v. O’Cain, 13 S. C. 100; Wallace »v. Agry, 4 Mason (C. C.), 336. 2 See § 168, post. 8 Per Wilde, J., in Codman v. Rogers, 10 Pick. 112. In this case the plaintiff had lain by for seventeen years; and no sufficient reason was sug- gested, in equity, for the long delay. 4 Thorpe v. Booth, Ry. & Moo. 388. See also Holmes v. Kerrison, 2 Taunt. 323; Brown v. Rutherford, 42 L. T. Rep. (w. s.) 659; Clayton v. Gosling, 5 B. & C. 360. But it has been held as a general rule that where an act on the part of the creditor is necessary to fix the liability of his debtor, the act must be performed within six years from the date of the contract. Morrison v. Mullin, 34 Pa. St. 12. 5 Holmes v. Kerrison, 2 Taunt. 323; Wolfe v. Whiteman, 4 Harr. 246. So of warrants drawn by a district township on its treasurer. Carpenter v. Union, 58 Iowa, 385. When money is unlawfully collected as a direct tax the statute of limitations does not begin to run against a person entitled to have it refunded until demand is made. Simons v. United States, 19 Ct. of Cl. 601. 8 Wallace v. Agry, 4 Mason (C. C.), 336. In this case Story, J., said that the holder is not at liberty to lock up the bill for any length of time in his own possession, but he may put it into circulation; and though it may remain a considerable time in circulation, if there be no unreasonable delay in any of the successive holders, the delay of presentment for accept- ance is not fatal to the party in case of dishonor. SEC. III. ] NOTES AND BILLS. 227 sented within a reasonable time.) When a bill is refused acceptance, and due notice thereof is given, the statute runs: from the time of refusal and notice.? § 160. Rule applied to Bank-Checks, etc.: Assessments. — Upon the general principle stated, money deposited in a bank is not, ordinarily, due without a demand made therefor,’ and this is the rule although the check be certified* The same rule is held as to a certificate of deposit payable on demand and bearing interest. So it is held that the statute does not begin to run against the holder of an ordinary bank-note until demand made and refusal to pay at the counter of the bank. But if a bank closes its doors and has no place of business, it is held that a demand is not necessary in order to sustain an action on its bills. The bank cannot be permitted to set up in defence to an action that the statute of limita- tions runs in its favor from the time of the closing of its doors, and the holder of the note may bring his action, alleg- ing the excuse for not making the demand, at his pleasure, as would have been his right after demand, if the bank had not 1 Wallace v. Agry, supra. 2 Whitehead v. Walker, 9 M. & W. 506. ® Bank of British North America v. Merchants’ Bank, 91 N. Y. 106; Girard Bank v. Bank of Pennsylvania, 37 Pa. St. 92; Fell’s Point Sav- ings Bank v. Weeden, 18 Md. 320. 4 Waldron, in re, 28 Hun, 481; Bank of British North America v, Merchants’ Bank, supra; Brown v. Pike, 34 La. Ann. 576. 5 Payne v. Gardiner, 29 N. Y. 146. See Tripp v. Curtenius, 36 Mich. 494; Meader v. Dollar Savings Bank, 56 Ga. 605. As between the maker and payee of a bank-check, the statute begins to run when the check is presented, if the maker has funds in bank to meet it. Carden v. Bruce, L. R., 38 C. P. 800. But if he has no funds the statute runs from the time the check is given, and the defendant’s fraud will not estop him from setting up the statute. Mohawk Bank v. Broderick, 10 Wend. 304; Brush v. Barrett, 16 Hun, 409; East India Co. v. Paul, 7 Moo. P. C. 89. 6 Bank of Memphis v. White, 2 Sneed. (Tenn.) 482. But where A gave his check to B, who indorsed it and demanded the amount of the bank, the limitation was held not to run in the bank’s favor from the time of the demand, in the absence of evidence that B was A’s agent. Viets ». Union Bank, 81 Hun, 484. 228 ACTIONS OF CONTRACT. [CHAP. IV. closed its doors.!_ The right to assess the stockholders of an insolvent bank in order to obtain funds with which to redeem its bills, accrues when the bank is temporarily enjoined from further doing business, if the injunction be afterwards made perpetual.? § 161. Grace: Note delivered on Condition: To secure previous Advances. — When a bill or note is entitled to grace the limitation begins to run from the last day of grace.? And where a note is not to be delivered to the payee until certain conditions shall have been performed, the limitation runs only from the delivery of the note.* The payee of a note not otherwise barred may recover for the money lent thereon, although more than six years have elapsed since the actual advance of the money; for the-limitation will not 1 Thurston v. Wolfeborough Bank, 18 N. H. 391. 2 Commonwealth v. Cochituate Bank, 3 Allen, 42. Where, under a decree of the court in Virginia, assessments were laid upon shares of cor- poration stock on a suit brought in Maryland to recover such assessments, it was held that the statute of limitations of the latter state would not bar the plaintiff, and that the statute began to run only from the time of the assessment made by the decree of the court in Virginia. Glenn v. Will- iams, 60 Md. 93. C, being about to open an account with a banker, gave him a note signed by C jointly with S, the defendant, for £200 on demand. At the same time they signed and delivered to the banker a memorandum, stating that the note was given as collateral for the banking account to be kept by C, and that the banker should be at liberty at any time thereafter to recover from them, or either of them, up to the full amount of the note, every sum which C at any time thereafter should owe his banker on account. The note was dated December 4, 1855. No demand was made till June 30, 1856, when a balance was found due the banker. Af- terwards, half-yearly statements were made C as often as the state of the account required it, he paying the balance against him and receiving credit therefor, till February, 1861, when the account was closed, showing a balance due from C. of £175. In March, 1862, the banker brought suit against S., and it was held that the statute of limitations was not a bar. Hartland v. Jukes, 1 Hurl. & Colt. 667. 8 Picard v. Valentine, 13 Me. 412; Kimball v. Fuller, 13 La. Ann. 602. In Holman v. Clark, 32 Ark. 697, it was held that if a demand is not made on the last day of grace the limitation will not begin to run until the succeeding day. 4 Savage v. Aldren, 2 Stark. 232. SEC. II1.] NOTES AND BILLS. 229 begin to run until the bill or note becomes due.! Where goods were sold on six months’ credit, payment to be made at the end of that time by a bill at two or three months, at the option of the purchaser, it was held that the statute began to run at the end of nine months from the sale.2 But in this case Parke, J., was inclined to the opinion, on account of the option given to the purchaser, that the contract was really for a six months’ credit, payable by a bill at the ex- piration of that time, so that the statute would commence running after six months. And where goods were alleged to have been bought on a year’s credit, and the evidence was that this credit was a mere customary indulgence of the merchant towards his customers, it was held that the case was not taken out of the statute.2 When the promise to pay in- terest is by a separate instrument, the instruments will be construed together and the limitation will attach to both at the same time.* § 162. Interest Coupons. — Action may be maintained upon interest-coupons from the time they become due, without presentation, and thus the statute of limitations begins to run, as against the holder, from such time.® And this is the tule although the coupons be not detached from the bond which represents the principal debt.6 Even where the face of the bond provided that the interest secured thereby should be payable semi-annually “upon presentation of the respective coupons hereto attached” it was held that action could be maintained upon the coupons without presentation for pay- ment, although these need not be paid until surrendered.’ The reason of the rule is that such coupons are in the nature of promissory notes payable to bearer and, as such, pass from 1 Wittersheim v. Carlisle, 1 H. Bl. 631. 2 Helps v. Winterbottom, 4 Barn. & Ad. 4380, 3 Brent v. Cook, 12 B. Mon. 267. 4 Prevo v. Lathrop, 2 Ill. 305. 5 Clark v. Iowa City, 20 Wall. 583, qualifying and explaining Kenosha v. Lamson, 9 id. 477, and Lexington v. Butler, 14 id. 282. (Clifford, J., dissenting). 6 Amy v. Dubuque, 98 U. S. 470. 7 Warner v. Rising Fawn Iron Co., 8 Woods (C.C.), 514. 230 ACTIONS OF CONTRACT. [CHaP. IV. hand to hand like ordinary negotiable paper,! and a pur- chaser of them, in good faith, from one who has stolen them acquires a valid title.? § 163. Presentment of Bill at a Particular Place. — If a bill of exchange be accepted payable at a particular place, the declara- tion, in an action on the bill against the acceptor, must aver presentment at that place, and the averment must be proved.® This rule was applied in an action in assumpsit against the acceptor of bills of exchange drawn in Paris, and made paya- ble in Boston at different and distant dates, to which action the statute of limitations was pleaded. Story, J., held that no action could be maintained upon the bills until after a demand was made in Boston and dishonor there; and it appeared that, by the French law, there could be no default on the part of the acceptor until demand and protest made at the place of payment. § 164. Action by Acceptor or Payee against Maker or Indorser.— In the case of the payment of a bill by an accom- modation acceptor, the limitation runs from the time of pay- ment, and not from the time when the bill becomes due. But where the payee and indorser of a promissory note, having indorsed it for the accommodation of the maker without any consideration between the parties, was afterwards compelled to pay the amount of the note to the holder, it was held that he could not recover from the maker on any of the money counts in indebitatus assumpsit, but must sue on the note, and that if more than six years had elapsed between the time at which the note fell due and the commencement of the action, he could not recover, although he might have paid the amount of the note to the holder within six years. Waiver of protest 1 Clark v. Iowa City, 20 Wall. 588. See Cooper v. Thompson, 13 Blatch. (C. C.) 434; Bailey v. Lansing, 13 id. 424; Evertsen v. Bank of Newport, 66 N. Y. 14. 2 Evertsen v. Bank of Newport, supra. 3 Rowe v. Young, 2 Bligh, 391; s. c. 2 Brod. & Bing. 165. 4 Picquet v. Curtis, 1 Sumner (C. C.), 478. 5 Kennedy v. Carpenter, 2 Whart. 844; Woodruff v. Moore, 8 Barb. 171; McMullen v. Rafferty, 89 N. Y. 456.. And see Hoyt v. Reed, 3 SEC. III. ] NOTES AND BILLS. 231 and notice by the indorser, before the note matures, binds him absolutely as by a new contract; and payment of interest by him interrupts the running of the limitation, as to him, even although the drawer’s obligation becomes barred.1 § 165. Of Agreements to suspend the Limitation. —It has been held that the running of the limitation may be suspended by agreement as between the maker and payee of a promissory note? But in a later case, where the parties had agreed to go into an inquiry as to the amount of damage for an admitted breach of contract, and through the defendant’s fault the in- quiry was prolonged so far that action was not brought until more than six years after the breach, and the plaintiffs con- tended that the agreement had the effect to suspend the running of the statute; Lord Campbell said that, notwithstand- ing the extreme hardship of the case and his disposition to -aid the plaintiff, it was the duty of courts of justice to take care that hard cases do not make bad law; and that the rule was firmly established that in assumpsit the breach of contract is the cause of action, and that the statute runs from the time of the breach even when there is fraud on the part of Blackf. (Ind.) 368. But it was held in Bullock v. Campbell, 9 Gill, 182, that the statute begins to run, not from the date of the note, but from the payment of the money by the indorser. Where the payee of a note sold it before it was due, representing the maker to be solvent, and afterwards, on the maker becoming insolvent, the purchaser sued the seller to recover the consideration paid for the note, it was held that if the time limited by the statute, reckoned from the time the note became due, had elapsed before the commencement of the action, the statute might be pleaded in bar. Hoyt v. Reed, 3 Blackf. (Ind.) 368. 1 Union Bank v. Lee, 33 La. Ann. 301. 2 Irving v. Veitch, 3 M. & W. 90. In this case the defendant was in- debted to the plaintiffs in a balance of £2,245, for which the plaintiffs held his overdue promissory note, and, in 1827, it was agreed between the parties that the defendant should pay the balance as follows, namely: £245 in cash and the remainder by annual payments of £300 a year; and that the plaintiffs should hold his promissory note as a security for the payment of the account. The £245 was paid, and the £300 was also paid for the years 1828 and 1829. It was held that the plaintiffs were entitled, at any time within six years from September, 1880, to sue the defendant on the promissory note, or for the balance remaining due on a count upon an account stated. 232 ACTIONS OF CONTRACT. [CHAP. IV. the defendant; and further, that the contrary proposition was not supported by authority.! But it would seem that such an agreement might furnish a ground of action in cases where it could be construed to be equivalent to a new promise on the part of the defendant.2 In conformity to the principle laid down by Lord Campbell, where a promissory note had been for sometime overdue, and an indenture was executed between the maker and his creditors, by the terms of which he assigned his property in trust for such of his creditors as should be- come parties to the indenture, and the creditors covenanted to discharge him from all claims on demand; it was held that this indenture did not suspend the operation of the statute as to the note. § 166. As to Attested Notes. — In Massachusetts the statu- tory limitation of six years does not apply to an action brought upon a promissory note signed in the presence of an attesting witness, if the action is brought by the original payee or by his executor or administrator; nor to an action brought upon bills, notes, or other evidences of debt issued by a bank. Similar statutory provisions exist in Maine,> Vermont, and other states. It makes no difference that the maker of such a note is an infant,é or that the note is not negotiable.’ But the note must be payable in money.’ If the original promisee 1 East India Co. v. Paul, 1 Eng. L. & E. 44; s. c. 14 Jur. 253. 2 See Union Bank v. Lee, 33 La. Ann. 301, as cited ante, § 164. 8 Harvey v. Tobey, 15 Pick. 99. 4 Pub. Sts. Mass. c. 197, § 6. 5 The statute of Maine, of 1838, extended to an indorsee the same right to sustain an action upon an attested negotiable note, after six years from the time of action accrued, which was given to the original promisee by the tenth section of the statute of 1821. And the rule applies to an * action on a witnessed note held by an indorsee at the time the act of 1838 was passed. Quimby v. Buzzell, 16 Me. 470. The payment of sucha note, where the limitation is twenty years, within that time, renews the note for twenty years. Estes v. Blake, 30 id. 164; Lincoln Academy ». Newhall, 38 id. 179; Howe v. Saunders, 88 id. 850. The limitation of witnessed notes in Vermont is fourteen years. ® Earle v. Reed, 10 Met. 387. 7 Sibley v. Phelps, 6 Cush. 172. 8 Dennett v. Goodwin, 32 Me. 44. But the contrary is held in Ver- mont. Bragg v. Fletcher, 20 Vt. 351. SEC. III.] NOTES AND BILLS. 233 of such a note transfers it after six years, the note is put upon a footing with notes not witnessed ; and the statute will begin to run against the indorsee from the time of the trans- fer. Where a witness attests the signature of one maker of a note, and another maker afterwards signs it, it seems that it is not an attested note as to the latter, within the provision of the statute. A person who sees the promisor sign a note has no right afterwards to subscribe his name as a witness thereto, without the knowledge or consent of the promisor ; and his doing this will not bring the note within the excep- 1 Frye v. Barker, 4 Pick. 382. So where a debtor gave to his creditor an attested note payable to a bank, and the creditor sold the note toa third person, who kept it fifteen years and till after the death of the maker, and then brought an action upon it for his own benefit, but in the name and by the authority of the bank, against the maker’s executors, — it was held that there was never any contract between the plaintiff bank and the payee, and that the note did not come within the statutory exemption of witnessed notes. Village Bank v. Arnold, 4 Met. 587. But where the payees of a witnessed note, more than six years after the same fell due, became bankrupt, and the note was sold by the assignee at auction and purchased by one of the payees, to whom it was transferred by de- livery merely, it was held that such payee might maintain an action on the note in the name of both payees, for his own benefit, under the statute as to witnessed notes. Drury v. Vannevar, 5 Cush. 442. See also Rock- wood v. Brown, 1 Gray, 261; Pritchard v. Chandler, 2 Curtis (C. C.), 488. And so also the holder of such a note may maintain an action thereon for his own benefit in the name of the administrator of the payee, provided the latter consent, after the expiration of six years from the time when the cause of action accrued. Sigourney v. Severy, 4 Cush. 176. And a wit- nessed note continues to be saved by the statute while in the hands of the assignee of an insolvent debtor, or the indorsee or assignee of such an assignee. Pitts v. Holmes, 10 Cush. 92. In Maine the statute of limi- tations does not bar a witnessed note sued in the name of the indorsee, though the indorsement be made more than six years after the pay-day of the note. Stanley v. Kempton, 30 Me. 118. 2 Walker v. Warfield, 6 Met. 466. And if, after the note has been signed by the maker in the presence of an attesting witness, it is signed on the back by another person, not in the presence of the witness but in pursuance of an original agreement to that effect, it is not, as to the latter, an attested note. Stone v. Nichols, 23 Me. 497. The attesting witness must be at the time of attestation competent to testify to the facts in court. Jenkins v. Dawes, 115 Mass, 599. i 234 ACTIONS OF CONTRACT. [cHapP. Iv. tion in regard to witnessed notes! The original instrument must be in form a promissory note, and not a mere condi- tional agreement or receipt.2 So an indorsement made on a promissory note acknowledging it to be due, signed by the promisor and attested by a witness, is not an attested note within the meaning of the statute.2 But a memorandum writ- ten on a note by the maker in these words, “For value re- ceived, I hereby acknowledge this note to be due, and promise to pay the same on demand,” and signed in the presence of an attesting witness, is itself a “ promissory note” within the meaning of the statute; and an action thereon is not barred.* If a part payment has been made on an attested promissory note, the original payee may maintain an action upon the note at any time within twenty years after the date of such payment.® 1 Smith v. Dunham, 8 Pick. 246. In order to constitute an attestation of a note within the statute, the witness must put his name to it openly, and under circumstances which reasonably indicate that his signature is with the knowledge of the promisor and is a part of the same transaction with the making of the note. Drury v. Vannevar, 1 Cush. 276. And the attestation must be made in the presence of all the signers of the note. Lapham v. Briggs, 27 Vt. 26. See Church v. Fowle, 142 Mass. 12; Tompson v. Fisher, 123 id. 559. But where the maker of the note pro- cured it to be attested nearly six years after its date, it was held that such attestation gave the paper the legal character of a witnessed note. Boody v. Lunt, 19 Me. 72. See also Swazey v. Allen, 115 Mass. 594. A defendant who signs a note already signed by others, to whose signatures there is an attesting witness, may plead the statute, for as to him the note is not a witnessed note. Trustees v. Rowell, 49 Me. 330. 2 Sloan v. McCarty, 134 Mass. 245. 8 Gray v. Bowden, 23 Pick. 282. Nor does the statute apply to a note when the action is brought by the first indorsee, the note being made payable to the promisor’s own order, and by him signed and indorsed in blank at the same time, in the presence of a person who puts his name thereto as a witness to the signature on the face of the note, but not to the indorsement. Kinsman v. Wright, 4 Met. 219. And if the note is both signed and indorsed in the presence of an attesting witness, and transferred by the maker by delivery to A, who afterwards transfers it to B, and B brings an action upon it, the note as against B is barred, he not being the original payee. Houghton v. Mann, 13 Met. 128. 4 Commonwealth Insurance Co. v. Whitney, 1 Met. 21. 5 Gilbert v. Collins, 124 Mass. 174. SEC. III.] NOTES AND BILLS. 235 Note. Actions for Usury. To entitle a complainant to a moiety of the penalty for usury, it must appear by the record that he prosecuted, complained, or sued for it, within the time prescribed by the statute for the commencement of process in such cases. Therefore, where the offence for which the penalty was demanded was proved to have been committed on the fourteenth day of October, 1807, and the bill was found by the grand jury in November, 1808, it was held that whatever interest the complainant might have had, it was lost to him at the commencement of the prosecution; more than the year limited, within which to commence such actions, having elapsed. The doctrine is that the offence is com- mitted when the usurious contract, the lending, and forbearance concur, and the limitation runs from that time, and not from the payment to the lender of the money borrowed. Commonwealth v. Frost, 5 Mass. 53; Wade v. Wilson, 1 East, 195. The cause of action is consummate co instanti the usury is paid. Breckenridge v. Churchill, 3 J. J. Marsh. 11. A lent B £500, and at the time of the loan it was agreed that the latter should pay more than legal interest as a compensation, but no particular tate was specified. After the execution of the deed, B gave A £50, and paid interest at the rate of £5 per cent on the £500 for five years; at the end of which time a qui tam action was brought against A for usury. It was held that the action was not barred by lapse of time, for that the loan was substantially for no more than £450, and consequently that the interest at the rate of £5 per cent on the £500 received within the last year was usurious. Scurry v. Freeman, 2 Bos. & P. 381. For other cases of usury, see Lloyd v. Williams, 3 Wils. 250; Fisher v. Beasley, Dougl. 235. Usurious interest, paid more than one year before the action is brought, cannot be recovered back. Pierce v. Conant, 25 Me. 33. The statute begins to run from the time of actual usurious payment, and not from the time of the agreement to pay. Rushing v. Rhodes, 6 Ga. 228; Davis v. Converse, 35 Vt. 503. But usury paid on a note, itself paid by renewal, may be set off in an action on a renewed note. Hayes v. Good- win, 4 Met. (Ky.) 80. See ante, § 142. Where the delivery of personal property from the borrower to the lender is a part of a usurious transac- tion, the possession of such property by the lender, the usurious contract being void, is tortious from the beginning; and, as trover will lie imme- diately for the property, if action is not brought within six years from the delivery it will be barred by the statute of limitations. Schroeppel v. Corning, 5 Denio, 236. (But in this case Whittlesey, J., dissented, and thought the possession of the property was not tortious.) Where separate notes are given for money loaned and for usurious interest thereon, and the latter is first paid, the payment will be considered as being on account of the legal debt, and the right to recover back money paid as usury will not accrue until the principal note is paid, and so the statute of limita- tions will not begin to run till that time. Booker v. Gregory, 7 B. Mon. 439. In France the lender does not acquire by lapse of time the right to retain the usurious interest. It is there held that a man cannot prescribe 236. ACTIONS OF CONTRACT. [cHAP. Iv. against good morals or public policy, and that the law will not authorize a person to retain, or confirm him in the possession of, that which it pro- hibited him from taking. Troplong, Com. sur la Prescription, n. 132. The provision of U. 8. Rev. Stats., §§ 5197, 5198, imposing a penalty on national banks for receiving usurious interest, the penalty being re- coverable by action ‘‘ commenced within two years from the time the usurious transaction occurred,’”? means two years from the time the in- terest was paid, without regard to payment of the principal. Lynch v. Merchants’ Bank, 22 W. Va. 554. SECTION IV. MISCELLANEOUS SIMPLE CONTRACTS. (a) Actions for Money payable in Instalments. § 167. Statute runs on each Successive Instalment. — It is a general rule that when a debt is made payable by instalments the time of limitation begins to run, as to each instalment, from the time when it becomes due.t The rule has been applied to a case where shares of an incorporated company were to be paid for in several instalments at different times.” So where a commissioner sold slaves on a credit of one, two, and three years, titles to be made on the payment of the first 1 1 Evans’s Pothier, 404. Under such circumstances, the courts will be inclined to favor every implication of an acknowledgment extending the time of the latest payment. Id. 2 Baltimore Turnpike Co. v. Barnes, 6 Harr. & J. 57; Frank v. Morri- son, 55 Md. 399; Burnham v. Brown, 23 Me. 400; Bush v. Stowell, 71 Pa. St. 208. Where a subscriber for shares in a stock company paid the cash therefor to an agent of the company, who died without transmit- ting the shares, and, eleven years after, the company declared the stock forfeited, it was held that the statute did not begin to run till the decla- ration of forfeiture. Rice v. Pacific Railroad Co., 55 Mo. 146. Where, by the terms of the subscription, no time is fixed for the payment of each instalment, the statute runs from the date of each call. Kent County R. R. Co. v. Wilson, 5 Del. 49; Western Railroad Co. v. Avery, 64 N.C. 491. If the time of each payment is fixed, the limitation as to each instalment runs from the fixed time; and if no time is fixed, the liability for payment being absolute, it is intimated that the statute would run from the date of the subscription as upon a debt due on demand. Phenix Warehousing Co. v. Badger, 67 N. Y. 294; Grubbo v. Vicksburg Railroad Co., 50 Ala. 398. SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 237 instalment, with a reservation of the right to sell again on non-payment by the purchaser and at the purchaser’s risk, and the slaves were delivered, —it was held that the statute began to run in favor of the purchaser on his failure to pay the first instalment.1 But where interest is payable annu- ally, the statute does not begin to run till some part of the principal becomes due.2, And in assumpsit on a parol prom- ise to guarantee the payment of a mortgage payable by instal- ments, it was held that the statute is to be considered as running only from the year ‘after the last instalment became due.2 Where a public officer is elected for a year, with a salary fixed at a certain monthly sum, the limitation does not begin to run until the end of the year.t| Upon agreement of the parties, contained in the contract, that on default in the payment of one instalment all the instalments shall become due, the statute will run from the time of such a default.6 Where money is advanced on a letter of credit, the limitation will run, as to each advancement, from its date.§ (b) To Enforce Conditional or Contingent Promises. § 168. Statute does not run until the Condition is performed. — While a promise is suspended by a condition, the statute 1 Singleton v. Heriott, 3 Rich. (S. C.) 321. 2 Grafton Bank v. Doe, 19 Vt. 463; Henderson v. Hamilton, 1 Hall, N. Y. S. Ct. 314; Ferry v. Ferry, 2 Cush. 92. 8 Overton v. Tracey, 4 8S. & R. 311. 4 Rosborough v. Shasta River Canal Co., 22 Cal. 556. 5 Hemp v. Garland, 3 Gale & Dav. 402. In this case the defendant, being indebted to plaintiff, gave a warrant of attorney for the amount, subject to a defeasance which recited that the warrant was given to secure payment of the debt by instalments, and that, in case default should be made in payment of any one of the instalments, the plain- tiff should be at liberty to enter up judgment for so much of the debt as should be unpaid at that time, as if all the periods of payment had ex- pired. And in consideration that the plaintiff would forbear until the time specified in the defeasance, the defendant promised to pay the in- stalments at the time mentioned. It appeared that a default had occurred in the payment of an instalment more than six years before the action was begun. It was held, as the plaintiff might have sued on the first default for the whole amount remaining unpaid, that the statute was a bar to an action on any of the instalments. 6 Regis v. Hébert, 16 La. Ann. 224. 238 ACTIONS OF CONTRACT. [cHaAP. Iv, does not run from the time of making the promise; for no right of action can accrue until the condition is performed or the event stipulated for happens.!_ If A promises B to pay him a sum of money if he will do a particular act, and B does the act, the promise becomes binding although B, at the time of the promise, does not engage to do the act. During the intermediate time, the obligation of the promise is sus- pended. Until the performance of the condition, there is no consideration and the promise is nudum pactum, but on the performance of the condition by the promisee, the promise is clothed with a valid consideration which relates back to the promise, and the promise then becomes obligatory.?, Where one promised by a signed writing to pay when he was able, it was held that the statute began to run from the time when he became able to pay, since, though the plaintiff knew not of the promisor’s ability, he was bound to inform himself upon the subject; and no demand was in such case necessa- | ry before bringing the action. The condition must be clear- ly expressed; therefore where trustees, empowered to raise moneys under a local act, had a meeting and verbally ordered that money should be raised to pay tradesmen, it was held that the statute as against the tradesmen began to run from the time when the work was done, and not from the time when the trustees were in funds.t So, in case of an agree- 1 1 Evans’s Pothier, 404; Goodnow v. Stryker, 62 Iowa, 221; Changeur v. Gravier, 4 Mart. (La.) 68; Gueno v. Soumastre, 1 La. Ann. 44; Stewart v. Marston, 12 id. 356. 2 Train v. Gold, 5 Pick. 384; Gardner v. Webber, 17 id. 407. An action against a town for the amount of a bounty voted to the plaintiff more than six years before the action was begun, in consideration of the plaintiff's enlisting on the quota of the town in the military service of the United States, is barred by the statute. Sturtevant v. Pembroke, 130 Mass. 373. 8 Waters v. Thanet, 2G. & D. 166, as cited in Browne, Actions at Law, 70. And see §§ 50-56, ante, as to new conditional promises and acknowledgments. 4 Emery v. Day, 1 Cromp. M. & R. 245. Where one of two parties in settlement paid a claim, which he alleged had already been settled by giving up a certain note, and the other party promised to refund the money if this should prove to be so; it was held that the statute of lim- itations began to run from the time of the promise. Durham v. Angier, 20 Me. 242; Tebo v. Robinson, 29 Hun, 243. SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 239 ment between heirs whereby some of them are to receive an additional allowance upon final distribution, the limitation does not begin to run until such distribution takes place! Gener- ally if, in a contract to pay money on a condition, no time for payment or for the performance of the condition is fixed, the statute will begin to run after the expiration of a reasonable time for payment? It is held that the fact that an indorser of a note takes security of the maker and receives demand and notice, does not have the effect to set the statute in mo- tion, as between the maker and indorser, before the maturity of the note.® § 169. Liability depending on a Contingency, or Future Event : Stockholders. The right to begin an action may depend upon a contingency, or the happening of a certain event, or the ascertainment of what is uncertain. Where a note was made payable when a mortgage, held by the maker, should be collected, it was held that the cause of action accrued when the mortgagee entered into possession by foreclosure. In contem- plation of law, the mortgage is then collected; and unless suit is brought upon the note within six years after the entry, the plaintiffs action will be barred. Where the stockholders in an insurance-company, at the time of its dissolution, were made responsible in their individual and private capacities to the extent of their respective shares in the stock of the com- pany, it was held that the statute did not commence run- ning in favor of such stockholders before the expiration of their charter.6 In Maryland, specialties being barred by stat- ute at the end of twelve years, it was held, where B be- queathed a legacy to J, and the executor who paid it took J’s bond, conditioned to refund it or a ratable part of it in case of a deficiency of assets, upon request,—that the cause of action accrued when the deficiency was ascertained, and that therefore the statute was no bar. It was further held not | 1 Rogers v. Gillett, 56 Iowa, 266. 2 Doe v. Thompson, 22 N. H. 217. 8 Cockrill v. Hobson, 16 Ala. 391. # Morgan v. Plumb, 9 Wend. 287. 5 Vanhook v. Whitlock, 8 Paige, 409. 240 ACTIONS OF CONTRACT. [CHAP. Iv. necessary to prove a special request by J to refund.! Where a subscriber for stock promised to pay “in such manner, at such times, and in such proportions as shall be determined,” it was held that the statute did not begin to run until such determination and demand made agreeably to the act of in- corporation.2. A suit to recover the amount of a subscription to the stock of a railroad corporation is barred by the statute unless a call be made within the time limited, or the delay be satisfactorily accounted for. If the obligation of the stockholder be intended to secure the payment of loans ef- fected by the company, the statute begins to run in favor of the stockholder at the maturity of the bonds issued by the company for its first loan,‘ or, in case of debts of the corpora- tion for which the stockholders are liable, when suit against the corporation has been prosecuted to final judgment and execution returned unsatisfied. But itis held that the limi- tation begins to run against an action to enforce the per- sonal liability of bank stockholders, arising from a clause in the charter of the corporation, from the time the bank suspends specie payments, whether its assets are exhausted in payment of debts or not.® § 170. Special cases. —In an action brought in 1825, to recover the amount paid on an agreement for the sale of land entered into between the parties in 1800, where nothing had been done by the defendant until 1824 which would en- title the plaintiff to rescind the contract, it was held that the statute would not bar the action.” Where land is conveyed as collateral security for the payment of a debt with agreement for reconveyance upon such payment, the statute does not begin to run upon the agreement to reconvey until an offer of 1 Salisbury v. Black, 6 Harr. & J. 293. 2 Sinkler v. Indiana Turnpike Co.,3 Penn. 149; § 158, ante. ® Pittsburgh & Conn. R. R. v. Graham, 2 Grant (Penn.), 259; Same v. Byers, 8 Carey (Penn.), 22; Same v. McCully, 8 id. 25. 4 Haynes v. Wall, 13 La. Ann. 258; and see Clinton R. R. Co. v. Easton, 14 id. 816. 5 Merritt v. Reid, 10 Daly, 311. ® Long v. Yanceyville Bank, 90 N. C. 405. 7 Leinnart v. Forringer, 1 Penn. 492. SEC. Iv.] MISCELLANEOUS SIMPLE CONTRACTS. 241 settlement has been made.! In indeditatus assumpsit, to re- cover the amount agreed to be paid by the defendant for owelty on a parol partition of lands, it was held that the legal title not having been completed until within six years before the commencement of the suit, the plaintiffs right of recov- ery was not barred.? Where by statute the right is given to the judgment creditor of a corporation to bring suit in equi- ty to reach the property of the corporation, the statute of limitations runs only from the return of an unsatisfied ex- ecution2 On an agreement to devise, the cause of action accrues on the death of the promisor;* and where A promised to pay money to his sister at the death of their father, it was held that the statute began to run from the father’s death.5 So where a farm was conveyed to a son on condition that he should support his father and mother for life, and the mother died and the father married a second wife, and the son was directed by the father to bring in his bill for the support of the second wife against his (the father’s) estate, —it was held that the statute would not run as against any part of the son’s claim until the death of the father.6 So where it was agreed between the maker and the holder of a note that the maker should keep the note until his liability as bail for the holder should cease, it was held that the statute began to run, not from the time of making the agreement but from the cessa- tion of the maker’s liability as bail.?7 Where a judgment is confessed for-a sum to be ascertained by the court, the statute does not begin to run till the sum has been so ascer- tained.6 A note payable in stone work at any time when the 1 Hall v. Fenton, 105 Mass. 516. 2 Walter v. Walter, 1 Whart. (Penn.) 292. To the point that the statute is suspended until the contingency happens, see also M’Dowell v. Grodmyn, 2 Const. (S. C.) 441; Painter v. Smith, 2 Root (Conn.), 142; Quigg v. Kitteridge, 18 N. H. 187; Nimmo v. Walker, 14 La. Ann. 581; Copse v. Eddins, 15 id. 528. 8 Taylor v. Bowler, 111 U.S. 110. - 4 Bash v. Bash, 9 Pa. St. 260; Quackenbush v. Ehle, 5 Barb. 469. 5 Thompson v. Gordon, 3 Strobh. 196. ® Sprague v. Sprague, 30 Vt. 483. 7 Bowles v. Elmore, 7 Gratt. 385, ® Wills v. Gibson, 7 Pa. St. 154. 16 242 ACTIONS OF CONTRACT. [cHapP. Iv. work shall be called for is not due till the work is called for.1 A demand depending upon the rectification of a mis- take by a court of chancery is not a demand depending upon such a contingency as to postpone the operation of the stat- ute until the rectification is made. And where B was to pay A a certain sum in case he prevailed in a suit in equity but died before the suit was determined, it was held that the statute of limitations began to run when the suit was deter- mined, and not when B’s administrator was appointed? But if an attorney’s fee is contingent upon his collection of mon- ey, and is to be paid out of it, the statute does not begin to run at the determination of the suit brought for collection.* A agreed to pay money on demand, provided the demand should not be made until the happening of a certain event, and by his own act postponed the happening of the event. It was held that he could not take advantage of a postpone- ment occasioned by his own act.6 The statute, as against a legatee who brings his action against the executor to account, is not suspended by the fact that the legacy is conditional, as depending upon the liquidation of the estate to determine its amount. It has been held that a reward offered for evi- dence leading to the conviction of an offender is not payable till conviction.” As already stated,® deposits in a bank are not payable till after demand,® and the same rule applies as to money deposited with an agent to be invested, and accounted for on demand,!? and to money deposited with a private banker on interest. In case of a loan of money payable on demand, 1 Lincoln v, Purcell, 2 Head (Tenn.), 148. 2 Jones v. Lightfoot, 10 Ala. 17. 8 Burton v. Lockert, 4 Eng. (Ark.) 111. 4 Morgan v. Brown, 12 La. Ann. 159. 5 Emmons v. Hayward, 6 Cush. 501. ® Deranco v. Montgomery, 13 La. Ann. 513. 7 Ryer v. Stockwell, 14 Cal. 134; but see Crawshaw v. Roxbury, 7 Gray, 374. 8 See § 160, ante. ® Girard Bank v. Bank of Pennsylvania, 87 Pa. St. 92; Fells Point Sav. Bank v. Weeden, 18 Md. 820. 10 Baker v. Joseph, 16 Cal. 173. nl Payne v. Gardiner, 29 N. ¥. 146; Same v. Slate, 39 Barb. 634. SEC, IV. ] MISCELLANEOUS SIMPLE CONTRACTS. 243 the statute begins, of course, to run from the time of the loan, unless demand is postponed by agreement.! (c) To Recover Money paid by Mistake. § 171. Generally, Statute runs from Time of Payment. — When money is paid by mistake, or more is paid than ought to have been paid, the excess may be recovered back by suit brought within six years thereafter, provided the mistake is of such a character that the law does not hold the paying party concluded. But if the party paying by mistake sleep upon his rights until the statute attaches, no inquiry can be had into the accounts between the parties prior to the settle- ment.? And, generally, the right of action dates from the time of the overpayment, not from the time when the fact of such overpayment was ascertained, there being no fraudulent concealment of the cause of action. But where balances are customarily struck between the parties from time to time, as between a bank and its depositors, the statute will run from the date of the balance in which the error occurs. Where a personal representative, having found a mortgage deed among the testator’s papers, assigned it, and it turned out to be a forgery, it was held that the assignee could not recover back his money from the assignor, the assignment having taken place more than six years before suit brought, although the discovery that the deed was a forgery was made within that time, it not appearing that the assignor knew it to be a for- gery. The statute was held to be a bar by the Supreme Court of the United States, in a case where, in 1819, at the 1 Cook v. Gook, 19 Tex. 434. 2 Clarke v. Dutcher, 9 Cowen, 674; Steele v. Steele, 25 Pa. St. 154; School Directors No. 5 v. School Directors No. 1, 105 Jll. 653; Interna- tional Bank v. Bartalott, 11 Ill. App. 620. 8 Jones v. School District, 26 Kansas, 490; Ware v. State, 74 Ind. 181; Sturgis v. Preston, 134 Mass. 872. No demand is necessary before bring- ing action in such a case. Id. 4 Union Bank v. Knapp, 8 Pick. 96. So where the parties submit the question of balance due to a reference, the statute will only run from the date of the referee’s finding. Moore v. Greene County Commissionets, 87 N.C. 209. 5 Bree v. Holbrech, 5 Doug. 654; Hunt v. Burk, 22 Ga, 129. 244 ACTIONS OF CONTRACT. [cHaP. IV. time of the return of a bill of exchange, drawn in Kentucky, payable in New Orleans, and protested for non-payment, the parties to it paid as damages ten per centum of the amount of the bill, and did not until 1827 set up the defence that, under the law of Kentucky, no damages were payable on such a bill? § 172. Application of the Rule in Suits by Executors and Administrators. Where an executor voluntarily paid over the amount of a legacy, and ten years afterwards alleged overpayment and brought a suit to recover back the excess, it was held that he was barred by the statute of limitations.? And where an overpayment was made on account of work done on a contract, and afterwards, on a final settlement be- tween the parties, the balance claimed by the workman was paid, it was held that the statute began to run against a claim for the excess paid, from the time of the final settlement. A had a claim against an intestate estate, which was paid by the administrator, a part in 1849 and a part in 1850. Afterwards the administrator discovered that A in 1847 had bought a horse of the intestate, the price of which had not been paid or cred- ited by A. In an action by the administrator to recover back the money paid by mistake it was held that the statute began to run from the time when A wrongfully received the money? And where an administrator, in the belief that the estate was solvent, paid a claim against it in full, but the estate was afterwards declared insolvent, the right to recover back the overplus was held to accrue at the time when the estate was declared insolvent.* (ad) To recover back Money upon Failure of Consideration. § 178. Statute runs from Time of Failure: Specific Cases. — If money be paid upon an existing consideration which after- wards fails, the statute does not run against the right to 1 Bank of the United States v. Daniel, 12 Peters, 32. ? Shelburne v. Robinson, 3 Gilm. (Ill.) 597. 3 Gamble v. Hicks, 27 Miss. 781; Johnson v. Rutherford, 10 Pa. St.. 455. See Salisbury v. Black, 6 Harr. & J. 293, as cited post, § 173. 4 Richards v, Nightingale, 9 Allen, 149. SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 245 recover it until such failure occurs. Thus, where money was paid on the promise of an intestate to convey an estate and the intestate died before making a conveyance, it was held that the action on the promise did not accrue when the money was paid, but at the death of the intestate, he having his life- time within which to convey the land. So, where an admin- istrator had paid the whole of a debt due from the intestate upon the mistaken supposition that the estate was solvent, it was decided that the cause of action to recover the amount of the overpayment arose when the insolvency was ascer- tained, and not when the money was paid.2, Where the guar- dian of a spendthrift sold without authority the spendthrift’s real estate, and credited him with the proceeds, which were applied to the payment of his debts, and, the guardianship be- ing afterwards revoked, the spendthrift and his heirs avoided the sale and the guardian was compelled to refund the money paid thereon; it was held that the guardian’s right of action against the spendthrift’s administrator for the amount re- funded accrued when the sale was avoided and the money refunded, and that the limitation would run from that time, and not from the time of settling the guardianship accounts.® Where an executor paid the amount of a legacy and took from the legatee a bond conditioned to refund the same, or a ratable part thereof, if a deficiency of assets should appear and a request to refund be made; and there being such a deficiency, the executor brought an action on the bond against the legatee for the amount overpaid, —it was held that the cause of action accrued when the deficiency was ascertained.* It having been ascertained by the judgment in an action by an assignee on a bond, before notice of the assignment, that the bond had been discharged by payments to, and set-offs against, the assignor, —it was held, in an action by the as- signee against the assignor, that the statute began to run at the time of the rendition of the judgment in the action on the bond, since the set-offs might never have been claimed by the obligor and it was only the judgment that fixed them as pay- 1 Eames v. Savage, 14 Mass. 425. 2 Walker v. Bradley, 3 Pick. 26. 8 Shearman »v. Adkins, 4 id. 283. 4 Salisbury v. Black, 6 Harr. & J. 293. 246 ACTIONS OF CONTRACT. [cHaP. IV. ments.! In an action brought to recover back the considera- tion of a void annuity granted by the defendant to the plaintiff more than six years before, but which had, within six years, been treated by the grantor as a subsisting annuity, though afterwards avoided at his instance, the court held that the statute began to run when the annuity was avoided.? Where money was paid for “ seven-thirty notes” of the United States which proved to be counterfeit, it was held that the limita- tion would not run upon an action to recover back the pur- chase-money until the plaintiffs had had an opportunity to obtain a judicial determination of the character of the paper. It was said: “No one who sells as genuine a forged note can avoid his liability . . . because of delay by his vendee in de- tecting the forgery, or in giving notice of it. The duty of the vendee to make . . . examination cannot be greater than was the duty of the vendor to make it before he . . . received its price; nor will the mere lapse of time confirm his title to the purchase-money if the purchaser exercised reasonable dili- gence in giving notice after the forgery was discovered.® § 174. Mistake as to Land sold. — In the case of mistake as to the quantity of land sold, the limitation begins to run against the right to recover back the whole or a proportionate part of the purchase-money, from the time when the mistake is discovered or might by reasonable diligence have been dis- covered.4 But the rule seems to be different when the action rests upon the fact that the vendor had no valid title to the 1 Scates v. Wilson, 9 Leigh, 478. 2 Cowper v. Godmond, 9 Bing. 748. Jn Merchants’ National Bank v. First National Bank, 4 Hughes, 9, 11, Waite, C. J., said: ‘‘In Cowper v. Godmond, the election to disaffirm was with the party to whom the payment was originally made, but this does not affect the principle on which the right to recover rests. The object is to get back a considera- tion which has failed; and in such cases it is evident that there can be no cause of action until the failure is complete. In Cowper v. Godmond, the payment was for the annuity, and the failure did not occur until the grantor of the annuity disaffirmed his grant.” 8 Frank v. Lanier, 91 N. Y. 112, and cases there cited, 4 Grundy v. Grundy, 12 B. Mon. 269; Biggs v. Lexington R. R. Co., 79 Ky. 470. SEC. IV. ] MISCELLANEOUS SIMPLE CONTRACTS. 247 land which he assumed to convey. Thus the plaintiff, being in the possession of land claimed by certain proprietors for whom the defendant assumed to act as agent, paid the defend- ant a sum of money and received a deed, the defendant repre- senting that the ownership of the proprietors included the land. More than six years after the payment of the money and delivery of the deed, it was ascertained that the owner- ship of the proprietors did not include the granted land. Thereupon the plaintiff immediately brought an action to recover back the purchase-money and interest. It was held that the plaintiffs action was barred, since if he ever had a right to recover back the consideration, it was when the deed was delivered to him, the proprietors having then had no title to the land described and there being no proof of fraud- ulent concealment of the facts on the defendant’s part.1_ The same rule was held where the conveyance was by a guardian’s deed, invalid by reason of the guardian’s failure to comply with certain statutory requirements.2 So where the vendor has been guilty of false representations as to incumbrances which the vendee might have detected by an inspection of the registry records, the statute will run from the delivery of the deed.2 Where parties entered into a written contract for the purchase and sale of land, and after the purchaser had paid the purchase-money, the seller conveyed the land to an- other, it was held that the purchaser’s right of action for 1 Bishop v. Little, 3 Me 405; Cochrane v. Oliver, 7 Ill. App. 176. The heirs of A, at his death in August, 1833, agreed verbally to make an equal division of the estate, which was done. The part allotted to B being of less value than than that allotted to C, it was made a part of the same agreement that C should pay to B $50. Deeds were immedi- ately executed, but B’s deed being invalid nothing further was done until May, 1837, when B gave a valid deed. In May, 1838, B sued C in assumpsit for the $50, and it was held that, as the right of action did not accrue against C until the delivery by B of the valid deed, the statute of limitations of three years was no bar. Baxter v. Gay, 14 Conn. 119. 2 Furlong v. Stone, 12 R. I. 437. See also Molton v. Henderson, 62 Ala. 426. * Northrop v. Hill, 61 Barb. 186; Kramer v. Carter, 186 Mass. 505, 507, as cited § 177, post. See Owin v. Western Savings Bank, 97 Pa. St. 47, where the rule was applied in a suit against a Recorder of Deeds for making a false certificate of search. 248 ACTIONS OF CONTRACT. [cHap. Iv. damages accrued upon the conveyance by the seller to the third person, and that the limitation began to run from that time.! § 175. Action to recover Money paid on Parol Contract to Convey. — Where money has been paid upon a parol contract _ for the conveyance of real estate, there being no time ap- pointed for executing the conveyanee, no action accrues to recover back the money paid, on the ground of the failure of consideration, until the party has demanded a deed, or until the death of the other party.2. B sold W a tract of land, and a deed was executed at the time of sale but left in the vendor’s possession. W paid part of the purchase-money but after- wards failed, and upon B’s offering him a deed W declined it on the ground of his inability to pay the balance due in compliance with the terms of the contract. B then declared the contract at an end, went on to improve the premises, and refused to pay back the purchase-money received. It was held that B, by refusing to refund the money, kept the con- tract open, and that the statute of limitations was no bar to W’s recovering the amount paid® The vendee of land, by articles under seal, assigned the land to the plaintiff, and agreed to give him receipts which would bring a deed from the vendor. It was held that if the receipts given entitled the plaintiff to a deed, and he continued in possession, he could not rescind and recover back his purchase-money, because the vendor refused to convey. That if he could so rescind and recover, the statute of limitations would begin to run on bis right to recover from the time of the refusal of the vendor to convey and would not be suspended by the subsequent declarations of the vendee that the receipts which he had delivered would produce a deed. The vendor of land left a part of the purchase-money in the vendee’s hands to secure the vendee against an outstanding lien. Subsequently the 1 Cochrane v. Oliver, 7 Ill. App. 176. 2 Hames v. Savage, 14 Mass. 425. See Collins v. Thayer, 74 Ill. 188; Cochrane v. Oliver, 7 Ill. App. 176. 8 Bowles v. Woodson, 6 Gratt. 78. 4 Stewart v. Keith, 12 Pa. St. 238. SEC. Iv.] MISCELLANEOUS SIMPLE CONTRACTS. 249 vendor paid the lien, and more than six years after the sale sued to recover the unpaid purchase-money. It was held that he could not recover on the agreement but might re- cover on a count for money had and received. Where a vendor, after receiving the purchase-money of A, who goes into possession, afterwards conveys the same land to B, A may bring his action to recover for breach of the contract within the time limited by statute, to be reckoned from the date of the agreement to convey to B, for up to that time there is a continuing promise to pay to A? (e) On Warranties. § 176. Generally Limitation runs from Time of Sale: Excep- tions. — It is a general rule that actions for false warranty in the sale of property accrue immediately, and the fact of the vendee’s inability then to ascertain the quality or condition of the property will not change the rule.2 Where the defend- ant had sold young apple-trees, warranted to be “twenty ounce apple trees,” to the plaintiff, and more than six years afterwards the plaintiff brought suit upon the warranty, it was said that the question was whether the defendant war- ranted the trees to be twenty-ounce trees, in which case the statute had become operative, or to bear twenty-ounce apples, in which latter case the warranty would be prospective in its operation and the suit would not be barred, the trees not having come into bearing until within six years. There is an obvious distinction between such cases and those in which action is brought for mere fraudulent representations as to the thing sold, not constituting a warranty, — the rule in such cases being that the statute begins to run only from the time when the fraud was ‘discovered by the plaintiff, or ought to have been discovered. This rule has been applied to the case of the implied warranty of title to a chattel ;° but it would 1 Evans v. See, 23 Pa, St. 88. 2 Harris v. Harris, 70 Pa. St. 170. 3 Battley v. Faulkner, 3 B. & Ald. 388; Bancum v. Streater, 5 Jones (N. C.), 70; Leonard v. Pitney, 5 Wend. 30; Allen v. Mille, 17 id. 202. * Allen v. Ladd, 6 Lans. (N. Y¥.) 222. 5 See ch. ix. sect. v. (b), post. ® Chancellor v. Wiggins, 4 B. Mon. 201. 250 ACTIONS OF CONTRACT. [cHapP. Iv. seem that the ordinary rule in cases of breach of warranty of title to real property should also apply as to the sale of chattels, that is, that an action will not lie until the vendee is dispossessed.?. § 177. On Covenants in Deeds, of Warranty of Title: Against Incumbrances. —It is a general rule that the statute will run against an action for the breach of the covenant of warranty in a deed, from the time of the plaintiff’s eviction,? whether actual or constructive. Upon this subject the court in Mas- sachusetts say: “It is frequently said that the covenant of warranty is broken only by an eviction; but this is so often explained by the words ‘constructive eviction, or ‘ what is equivalent to an eviction,’ or some such qualifying term, that its meaning is left uncertain. Perhaps a more correct state- ment ... would be that an eviction is what would consti- tute a breach of the covenant of warranty.” * Where land had been conveyed to C subject to certain conditions as to build- ings, and C conveyed the land to D with full covenants of warranty, and from D the land passed by mesne conveyances, containing like covenants, to HE, against whom judgment was obtained for breach of the covenant of warranty by his own grantee, — it was held that the breach of the covenant against incumbrances occurred when the deed passed from C to D, and that the breach of the covenant of warranty occurred when the judgment against E was paid.® (f£) For Continuing Services: Attorney. § 178. Generally, Limitation runs only from Completion of the Service.— Where a contract requires a continuing service by one of the parties thereto, the limitation does not begin to run against the party performing the service until such service is or 1 Caplinger v. Vadeu, 5 Humph. (Tenn.) 629; Gross v. Kierski, 41 Cal. 111. 2 Flowers v. Foreman, 23 How. 182. 8 As to what acts generally will constitute an eviction, see Taylor, Landlord and Tenant, 8th ed., § 381, notes and cases cited. 4 Kramer v. Carter, 186 Mass. 505, 507. 5 Id., and see Northrop v. Hill, 61 Barb. 136. SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 251 may becompleted.!' Thus the statute does not run against the claim of an attorney at law for professional services, so long “as the debt which he seeks to recover for his client re- mains unpaid. A mere suspension of proceedings, it is said, from an apprehension that nothing might be got, would be a dangerous ground from’ which to infer a termination of the contract; for, however desperate the affairs of a debtor may seem, it is impossible to say how soon they may be re- trieved; and if money were subsequently lost for want of pursuit, the attorney might be liable for it.2 The contract of an attorney to carry on dr defend a suit is an entire con- tract to manage the suit to its close, and therefore the limi- tation will run only from the termination of the proceedings.® 1 Working ‘‘ by the job”’ is understood by workmen to be the doing of the whole thing to be done, and the expression is used in this sense in the Civil Code of Louisiana. Bouvier, Law Dict. Tit. Job. For a like con- struction of the same expression in cases involving the application of the statute of limitations, see Zeigler v. Hunt, 1 McCord, 577; McKinney v. Springer, 8 Blackf. (Ind.) 59; Walker v. Goodrich, 16 Ill. 341; Mygatt v. Wilcox, 45 N. Y. 306; Adams v. Fort Plain Bank, 36 N. Y. 255; Phelps v. Patterson, 25 Ark. 185. Where a building contract contem- plates extra work and provides that payment shall be by certain specific instalments, and that the balance which may become due shall not be paid until the entire work is completed, no action will lie for the extra work while the contract remains executory, nor will the limitation begin to run. Gibbons v. United States, 15 Ct. of Cl. 174. 2 Foster vu. Jack, 4 Watts, 334; Jones v. Lewis, 11 Tex. 359; but see Freeman v. Bigham, 65 Ga. 580. If a case be continued nisi and judg- ment be entered in vacation, the statute runs from the entry of judgment. Eliot v. Lawton, 7 Allen, 274. If judgment be recovered, the statute does not run until the relation of attorney and client ceases. Lichty v. ‘Hugus, 55 Pa. St. 434. 8 Rothery v. Mannings, 1 Barn. & Ad. 15; Harris v. Osbourn, 2 Cromp. & M. 629. If by advice of the attorney the client consent to an abandon- _ment of the suit, the service then ends and the statute begins to run. Negligently suffering the abandoned action to remain on the docket will not prolong the right to sue. Bathgate v. Haskin, 5 Daly, 367. The statute bars a claim for services not performed in relation to the par- ticular suit, though rendered during its pendency. Hale v. Ard, 48 Pa. St. 22. 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. Falkner, 2 C. B. 707. And see Whitehead v. Lord, 11 Eng. L. & E. 587. But where an attorney was employed to raise 252 ACTIONS OF CONTRACT. [cHapP. Iv. But the contract may be terminated before the conclusion of the suit, for good cause and upon reasonable notice. And where the attorney is employed to furnish general professional advice and services, extending over a long period, without special agreement as to time of payment, he is entitled to demand payment within a reasonable time, and the statute bar applicable to simple contracts would attach to services not rendered within the limited time.” 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 the plaintiff’s bill, which was ‘charged within six years, would take the others out of the statute. Phil- lips v. Broadley, 11 Jur. 264; s.c. 16 L. J. Q. B. 72. Where the client was defeated in the lower court but successful on appeal, it was held that the attorney’s claim for services was entire, and that the limitation began to run from the final judgment. Gustine v. Stoddard, 23 Hun, 99. An at- torney having neglected to prosecute a claim until it was barred, but being guilty of neither fraud nor concealment, it was held, in an action against him for such neglect and special consequential damage, that the statute began to run in his favor from the breach of duty, although the special damage was not discovered until later, and that the client’s retention of the attorney, after knowledge of the breach of duty, did not suspend the running of the statute. Moore v. Juvenal, 92 Pa, St. 484. 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 this is to be payable being agreed upon, the hiring is payable when earned or within reasonable time thereafter, and the service is not continuous so as to take the earlier wages out of the statute. Mims v. Sturtevant, 18 Ala. 359. See also Davis v. Gorton, 16 N. Y. 255, and contra, Littler v. Smiley, 9Ind. 116. The statute is not a bar to a suit for labor performed more than six years before action brought, if performed under a contract which expired within the six years. Vanhorn v. Scott, 28 Pa. St. 316. If ex- tra work be done in the performance of a contract, the statute runs from the completion of such work. Peck v. N. Y. Steamship Co., 5 Bosw. 226. And where a contract to do a thing contemplates the allowance of a reasonable time therefor, the statute does not begin to run until such time has elapsed; and the question of reasonable time is for the jury. Evans v. Hardeman, 15 Tex. 480. A promise to keep house for one until his death is not executed till the death; and the statute runs only from that time. Schoch v. Garrett, 69 Pa. St. 144; Jilson v. Gilbert, 26 Wis. 637. 1 Eliot v. Lawton, 7 Allen, 274. 2 Mosgrove v. Golden, 101 Pa. St. 605. SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 258 (g) Between Co-tenants and Co-contractors: Contribution. § 179. General Rule applied. — The rule that the limitation begins to run from the time when the cause of action actually accrues applies to suits between co-tenants and co-contractors. Thus in an action for money had and received by one tenant in common against his co-tenant for the proceeds of trees, sold, the statute begins to run from the time when the party becomes liable to account, that is, from the time of the payment ; and if a promissory note be taken from the purchaser, upon which payments are afterwards made, the statute begins to run, as to each payment, from the time of such payment.! So in an action for contribution between co-contractors the limitation begins to run from the time of the payment on which contribution is demanded.? Thus 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 in his behalf against the other joint purchaser, and such right will be barred by the lapse of the time limited by’ the statute, to be reckoned from the time of payment. Where two distributees of an estate entered into an agreement by which one was to have a life-estate in both shares and the other the remainder, it was held that the statute limitation did not begin to run against a suit brought by the remainder- man for property sold by the tenant for life, until the termi- nation of such life-estate.* § 180. Joint Makers and Indorsers of Notes: Copartners. — It is held, where the liability of one joint maker of a promis- sory note is kept alive by partial payments but the remedy against the other maker is barred, that the maker who con- tinues liable may recover a contribution from the other when he has paid the debt. So the statute runs against an indorser of a note who pays for the benefit of the maker, from the time. 1 Miller v. Miller, 7 Pick. 183. 2 Sherwood v. Dunbar, 6 Cal. 58; Buck v. Spofford, 40 Me. 328. 8 Brady v. Calhoun, 1 Penn. 140. * Paxton v. Rhea, 3 Ired. Eq. 248. 5 Peaslee v. Breed, 10 N. H. 489. 254 ACTIONS OF CONTRACT. [ CHAP. IV, of the payment, whether this be partial or total! And one partner may maintain assumpsit against his co-partner for contribution when he has paid a partnership debt more than six years after a general assignment by the firm, in trust for creditors, and it does not appear that the partnership accounts are still open and unsettled.” (h) On Contracts of Indemnity. § 181. Generally, Limitation does not run until Plaintiff is damnified. — An idemnity is that given toa person to prevent his suffering damage. In general, the statute begins to run, in a suit on a promise of indemnity, from the time when the promisee actually pays the money or damages, and not from the time when he becomes Liable to pay it. Thus it was 1 Bullock v. Campbell, 9 Gill, 182. In Lomax v. Pendleton, 3 Call (Va.), 542, the complainant and defendant had, at the request of the drawer, W, become indorsers of bills of exchange on a mercantile house in London; the complainant also indorsed other bills of W 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 de- manded from the complainant, who in 1753 (the same year in which the bills were 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 hands and as he could spare it from his own estate. All the debis were paid by October, 1762. It then appeared that the com- plainant’s 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 com- plainant and defendant, as that was the last-mentioned debt in the trust deed. The trust estate was closed in 1765. The complainant did not apply to the defendant until some time in the year 1766, when he trans- mitted him an account claiming a moiety of the money paid by the com- plainant on the bill indorsed by them both, with interest from October, 1762. Payment was refused, and suit begun in 1768. The defendant pleaded the statute. From the report of the commissioners to whom the accounts were referred, it appeared that the bill was taken up by the com- plainant and his own bond executed for the payment thereof, in Novem- ber, 1765, and it was held that the statute could not be considered as beginning to run till the trust was closed in 1765, 2 Brown v. Agnew, 6 W. & S. 235. 8 Colvin v. Buckle, 8 M. & W. 680. SEC. Iv.] MISCELLANEOUS SIMPLE CONTRACTS. 255 held that a right to sue upon a contract of indemnity against the costs of an action is first vested when the promisee pays the bill of costs, so that the statute does not begin to run until such payment. For the plaintiff in such a case is not damnified until he is called on to pay the bill, and until he is damnified he has no right of action against which the limitation can run.? § 182. Applications of the Rule. — Where the board of man- agers of a turnpike company authorized two of their number to borrow a certain sum of money of a bank, for the use of the company, pledging the stock for its repayment, and sev- eral other members of the board entered into a written agree- ment to guarantee each a proportionate 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, and the borrowers, after that sum was ex- hausted, 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; that the promisors’ liability continued as long as the loan continued ; that the promisees’ cause of action accrued when the whole of the money was paid; and that a suit against the prom- isors brought within six years from that time was not barred.” Several persons subscribed for shares in a meeting-house to be erected by a committee of their number, at an expense not exceeding five thousand dollars, the whole number of shares being one hundred. The subscribers were not to be called 1 Collinge v. Haywood, 1 P. & D. 502, overruling Bullock v. Lloyd, 2 C.& P. 119. See also Reynolds v, Doyle, 1 Mann. & G. 753; Platt v. Smith, 14 Johns, 368; Rodman v. Hedden, 10 Wend. 500; Powell ». Smith, 8 Johns. 249; Paul v. Jones, 1 T. R. 599; Illies v. Fitzgerald, 11 Tex. 417; Carter v. Adamson, 21 Ark, 287. When a town not bound to furnish supplies to a pauper furnishes them, the statute begins to run in favor of the town legally liable therefor from the time of the notice, and not from the time of furnishing the supplies. Cutler v, Maker, 41 Me. 594. 2 Jones v. Trimble, 3 Rawle, 381. See Douglass v. Reynolds, 7 Peters, 113. } 256 ACTIONS OF CONTRACT. [cHaP. IV. upon for the money until the house should be completed. The subscribers agreed, in proportion to the number of shares subscribed for by each, to indemnify and save the committee harmless for money borrowed for building the house. The committee erected the house at an expense exceeding five thousand dollars, and borrowed money for the purpose in. 1829, and gave their note for it, paid it in 1839, and com- menced an action against one of the subscribers on his agree- ment of indemnity in 1841. It was held that this action was not barred, as the statute did not begin to run against the committee until they paid the note. § 183. Rule Waived by Terms of the Contract.— But the time when a guarantor will become liable.to suit will depend always upon the stipulations of the contract and the particu- lar circumstances of the case.? Thus where there is a prom- 1 Hall v. Thayer, 12 Met. 130. 2 In 1816 G shipped goods on a vessel chartered by him for Cal- cutta, and B & Co. made advances to enable him to do so, under an arrangement that the goods should be transmitted to the agents of B & Co. at Calcutta, who were to dispose of the outward cargo there and send the proceeds in goods or bills to B & Co. in London, who were to reimburse themselves their charges and hold the balance at the disposal of G. In November, 1817, G being indebted to the defendants in £850, the de- fendants and G applied to B & Co. to pay off this debt by a further ad-~ vance to G on his consignment, and the defendants gave B & Co. the following guaranty: ‘Messrs. B & C: You having expressed some doubts of the propriety of paying G’s draft on you for £850 in our favor, we hereby engage, if you will pay us the same, that we will reimburse you the amount on demand, with interest, in the event of your finding it necessary to call upon us to do so, either from the state of G’s pending ac- count with you or from any other circumstances.’? B & Co. thereupon accepted and paid a bill for £850 drawn by G on them in favor of the defendants. The vessel returned to England with a cargo in April, 1818, when C, the. owner (G having become bankrupt), gave notice to the East India Company, in whose docks the ship lay, not to deliver any of: the cargo without his authority. The company thereupon sold the cargo, and paid the owner’s demand for freight, and in consequence of conflict- ing claims from G’s assignees, and from B & Co., filed an interpleader, and paid the balance into court. Proceedings at law and equity were continued between the parties until 1837, when B & Co. were obliged to pay C’s costs. In 1838 B & Co. demanded of the7defendants the £850, due by the guaranty, with interest and their share of the expense of pro- SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 257 ise to indemnify and save harmless, and the promisee is sued and charged in execution, the promise of indemnification is then broken, and an action may be maintained although the debt be not paid by the promisee ; but in such case the plain- tiff will recover, not the amount of the debt, but only a com- pensation for the injury which he has sustained.!. On a bond conditioned that the obligor should pay to the obligee all costs and damages that might be awarded against the obligee in consequence of the delivery of a negro to the obligor, it was held that the action accrued when a judgment in favor of. a third party was rendered against the obligee for the slave, though the judgment was not satisfied ; because, by the judg- ment, the body and effects of the obligee became liable to ex- ecution, and he could not, by reason of the judgment, make a clear title to his lands. § 184. Guarantees of Indemnity indefinite as to Time. — The limitation does not begin to run on a guaranty of the debt of another, entered into in consideration of forbearance to sue, until the promisee has forborne for a reasonable time, as no cause of action accrues until then.2, Where there is a contin- uing guaranty, the statute begins to run from the time of a default. Where an executor sold a slave, the property of the testator, and bought it himself, and afterwards the sale was set aside and the executor decreed to be liable for the price of the slave, it was held, in an action against the surety of the executor, that the statute began to run from the time of the decree. In general it may be said that where a guaranty is ceedings, and on the defendants’ refusal to pay brought an action against them on the guaranty. It was held, first, that the limitation began to run against the plaintiffs, not from the termination of the legal proceedings in 1837, but from the time of the return and sale of the cargo in 1818 when all the facts were ascertained upon which the defendants’ legal liability depended; and second, that the defendants could not be made liable under the guaranty for expenses incurred by the plaintiffs in the law proceedings. Colvin v. Buckle, 8 M. & W. 680. 1 Murrell v. Johnson, 1 Hen. & Munf. 450. 2 Thomas v. Croft, 2 Rich. (S. C.) 118. § Bank of South Carolina v. Knott, 10 Rich. (S. C.) 543. 4 Franklin v. DePriest, 13 Gratt. 257. And see Johnson v. Gilfillan, 8 Minn. 895, 17 258 ACTIONS OF CONTRACT. [ CHAP. IV. absolute (as to pay a note at its maturity), as the right of action accrues to the payee against the guarantor upon the default of the maker to pay the note at maturity,! so the stat- ute begins to run at the same time in favor of the guarantor.? On the other hand, where the guarantor’s liability is mérely contingent, as in case of a guaranty of payment of rent ona lease,’ or that a note is “ good,” * or to pay in case the holder fails to recover the money on a note,’ the right of action against the guarantor does not attach until the creditor has exhausted his remedies against the principal; and until he has done this, the statute will not begin to run as between the principal and the guarantor. (i) By Surety against Principal. § 185. Limitation runs from Time of Payment. — Upon an ac- tion brought by a surety against the principal debtor for the de- fault of the latter, the limitation begins to run only from the time when the surety has paid the creditor.6 Thus it has 1 Koch v. Melhorn, 25 Pa. St. 89. 2 Anderson v. Washabaugh, 43 Pa. St. 115. So where the guaranty was that goods should be paid for on delivery. King v. Studebaker, 15 Ind. 45. A guaranty of the payment of a written obligation ‘ according to its terms,’’ is broken by non-payment when the time of payment arrives, and the limitation begins to run forthwith. Roberts v. Riddle, 79 Pa. St. 468. 8 Gilbert v. Henck, 80 Pa. St. 205. * Cooke v. Nathan, 16 Barb. 342. 5 Vanderkemp v. Shelton, 11 Paige, 28. 6 See Hale v. Andrus, 6 Cowen, 225; Scott v. Nichols, 27 Miss. 94; McLean v. Ragsdale, 31 id. 701; Barnsback v. Reiner, 8 Minn. 59; Walker v. Lathrop, 6 Iowa, 516; Burton v. Rutherford, 49 Mo. 255; Bennett v. Cook, 45 N. Y. 268; Thayer v. Daniels, 110 Mass. 345; Wheeler v. Young, 143 id. 148; Moore v. Caldwell, 8 Rich. Eq. (S. C.) 22; Reed t. Flippen, 47 Ga. 273; Graves v. Johnson, 48 Conn. 160; Beck v. Tarrant, 61 Texas, 402; Ricks v. Gantt, 35 La. Ann. 920; Snedecor v. Watkins, 71 Ala. 48. If A borrows money from B to lend to C, the running of the statute on C’s debt to B is not affected by the time of enforcement of B’s liability to A. Howard v. Presbyterian Church, 51 Mich. 125; Hammond v. Hale, 61 Iowa, 38. It was held in Massachusetts that the right of action of a co-surety on a guardian’s bond, against heirs having assets, is not limited to one year, where suit is brought within one year of the time where the co-surety was obliged to pay. Wood »v, Leland, 1 Met. 387. SEC. IV. ] MISCELLANEOUS SIMPLE CONTRACTS. 259 been held, where an infant gave his promissory note for the price of necessaries, signed by himself and a surety, that the latter, if he pay the note, is entitled to recover of the infant the amount so paid; and the surety’s right of action com- mences on payment of the note.! But if, in an action against the infant -and his surety, the former pleads infancy, and has judgment, but judgment is given against the surety and the latter pays the debt, he pays it not as surety but as sole debtor.2 If the surety pay the note before it becomes due, his right of action against the principal does not accrue till the note becomes payable’ If a party make a payment on ac- count of a debt for which he has become surety without a request from the principal debtor, this is not such a new ac- knowledgment by the principal that the limitation will begin to run anew from that time as against him.* In an action commenced in 1825, it appeared that in 1818 the defendant as principal, and K and W as sureties, made and delivered a promissory note payable in sixty days. In 1816, K, one of the sureties, paid the amount of the note, without suit and without consulting the defendant. W,in 1820, voluntarily paid K one half the sum the latter had paid in discharge of the note, without the knowledge of the defendant, who con- See also Peters v. Barnhill, 1 Hill (S. C.), 234. Where A was indebted to B, and C agreed to pay the debt, but afterward refused, and A was compelled to pay it, it was held that, as between A and C, the latter was principal and the former surety, and that the statute began to run against A’s claim upon C from the time of the payment of the money, and not from the date of the agreement or from the refusal of C to pay B. Ponder v. Carter, 12 Ired. 242. A owed B, and in settlement between A and C, C was allowed a credit for what A owed B. B demanded the money of C, and on refusal brought suit. It was held that the statute began to run from the demand. Carroway v. Cox, Busbee, Law (N. C.), 173. So where upon a compromise of a suit between A and B, the latter agreed to pay A’s attorney, but neglected to do it, and A was obliged to pay, it was held that A’s right of action accrued against B when he paid the money, and notice to B was not necessary. Deaver v. Carter, 12 Ired. 267. And see also Douglas v. Elkins, 28 N. H. 26. 1 Conn v. Coburn, 7 N. H. 368. ? Short v. Bryant, 10 B. Mon. 10. 3 Tillotson v. Rose, 11 Met. 299. 4 Ettinge ». Hull, 20 Demarest, 562. 260 ACTIONS OF CONTRACT. [cHapP. Iv. tended that, ten years having elapsed since he had known or heard anything of the transaction, he might rely upon the statute limitation. It was held that when K paid the debt he at once became entitled to an action for contribution against W, and might have maintained such an action at any time within six years after the payment; that it was not neces- sary that W should be compelled by an action to pay, in order to render the defendant liable to him, and, therefore, that when W paid to K one half of the sum which the latter had paid, the right of action accrued! Though a judgment be re- covered against a surety and he be imprisoned upon a capias, this, being no satisfaction to the creditor for his debt, or dis- charge of the principal debtor, does not entitle the surety to call upon the principal for money paid to his use.2_ The right of action of a surety to set aside a voluntary conveyance of his principal, not recorded, begins where adverse possession is taken under assurance of title purporting to convey an estate in fee. 1 Odlin v, Greenleaf, 3 N. H. 270. So where an agent makes a sale of goods for his principal and the goods turn out worthless, whereby the agent is subjected to loss, the statute begins to run against the agent's claim upon the principal for indemnity, from the time he is damnified or subjected to the loss. Legare v. Fraser, 3 Strobh. (S. C.) 877. In Penn- sylvania it is provided by statute that when an indorser is compelled to pay a note to a bank of which the maker is a stockholder, he may, upon giving notice that he claims the stock and dividends of the maker, recover of the bank, in an action for money had and received, the dividends so retained. Under these provisions it is held that the note is the merito- rious cause of action, and the statute begins to run when the note becomes payable. Farmers’ Bank of Reading v. Gilson, 6 Pa. St. 57. And the fact that by a contract of partnership, under seal, between the maker and indorser, it is agreed that the note shall be put into the concern as a part of the maker’s contributive share, does not exempt it from the operation of the statute, there being no agreement by the maker to defend the indorser against the payment of the note. Id. Where one not a party to a note divides the consideration with the maker and promises the maker to pay his half of the amount when the note becomes due, the statute begins to run against a suit on the promise as soon as the note becomes due, and not from the time of payment, if the note is afterwards paid in full by the maker. Joiner v. Perry, 1 Strobh. (S. C.) 76. » Rodman v. Hedden, 10 Wend. 500; Powell v. Smith, 8 Johns. 249. 8 McBee v. Bearden, 7 Lea, 7381. SEC. Iv.] MISCELLANEOUS SIMPLE CONTRACTS. 261 § 186. Limitation applied to Successive Payments. — Since the surety is entitled to sue the principal, or co-surety, for the amount of each payment as it is made, the statute may bar the right of recovery upon prior payments and not upon later payments.! ‘Thus where three parties, A, B, and C, of whom A and B were sureties for C, promised jointly and severally to pay KE £300, A having paid the whole (namely, £280 more than six years before action begun, and £30, being the residue of principal and interest, within six years), it was held, in an action by A against B for contribution, that A could recover only £30, the statute barring the rest because the right of action attached as soon as the plaintiff had paid more than his proportion. It was also held, in an action on the same note against the principal, that the statute was a bar to re- covery except as to £380, since the plaintiff had a right of action against the principal the moment he paid anything.? If one of two sureties is sued by the payee of a note before the action is barred by the statute, and judgment is rendered in the action after the statute would have been a bar to an original action, the defendant surety who pays the judgment has an action against his co-surety for contribution, at any time within six years from the time of such payment.’ So under like circumstances the surety paying may sue the prin- cipal, although, by failure to join the principal in the suit against the surety, the principal is discharged.* § 187. Surety paying by Note: Prior and Subsequent In- dorsers of Bill. — If a surety, as for example an accommodation indorser, pays a judgment obtained against him by giving his promissory note, which is accepted by the plaintiff in full satisfaction of the judgment, the cause of action by such surety against the principal, to recover as for money paid, is perfect; and in such case the statute commences running 1 Butler ». Wright, 20 Johns. 867. And see Davies v. Humphreys, 6 M. & W. 153; Knotts v. Butler, 10 Rich, Eq. (S. C.) 143. 2 Davies v. Humphreys, supra. ® Crosby v. Wyatt, 23 Me. 156. 4 Reid v. Flippen, 47 Ga. 278, overruling Turner v. McCarter, 42 id. 401. ' 262 ACTIONS OF CONTRACT. [cHapP. Iv. from the delivery of the new note, though this remain unpaid. Therefore, under such circumstances, a plea of actio non accrevit infra sex anncs may bar a recovery by the surety against the principal, although, counting from the time of the actual payment of the note, the statute would not be effectual. A guaranty that a note payable at a future day “igs due, and that the maker has nothing to file against it,” is considered as referring to the time when the note shall mature, and the statute limitation begins to run from that time.2. The liability of the drawer or indorser of a bill of exchange accrues when the bill is dishonored by the acceptor but it has been held that where a subsequent indorser pays the note, the statute runs in favor of the prior indorser from the time of payment.! § 188. Actions for Contribution against Surety’s Represen- tatives. —- In accordance with the general rule, it is held that a cause of action against the representatives of a co-surety, for contribution, accrues when, and not before, the plaintiff pays the debt of the principal. One of two sureties paying the debt of his principal may, in Massachusetts, bring a suit in equity for contribution against the heirs of his co-surety within reach of process, and have a decree against them sev- erally, for such equal sums as amount in the aggregate to a moiety of what he has thus paid, though there are other heirs who are not summoned. And so, if one of the heirs sum- moned die pending suit, his administrator may be summoned in, and a like decree had against him as might have been had against his intestate. But it is held that if one of sev- eral joint debtors dies, the right to sue for the recovery of the debt as against his representative does not accrue until the survivors become insolvent or irresponsible, and the limitation does not begin to run against such an action until that time.® 1 Rodman v. Hedden, 10 Wend. 498; Barclay v. Gooch, 2 Esp. 571. See Sullivan v. Sullivan Mfg. Co., 20 8. C. 79. 2 Adams v. Clarke, 14 Vt. 9. 8 Hunt v. Taylor, 108 Mass. 508. 4 Pope v. Bowman, 27 Miss. 194. 5 Wood v. Leland, 1 Met. 387. ® Leake Orphan House Trs. v. Lawrence, 11 Paige, 80; 2 Denio, 577. SEC. IV.] MISCELLANEOUS SIMPLE CONTRACTS. 263 § 189. Cause of Action against Co-Surety after Judgment, when it Arises.— The seizure of goods or lands upon execution, or a sale of them by the sheriff, is not of itself a payment of the judgment upon which the execution issued; nor can the ' judgment be considered satisfied until there be an actual payment or a final appropriation of the money from the sale, so as to enable the defendant in execution to resort by action to a co-defendant or co-surety for contribution ; and then only ‘will the statute begin to run.! So, where it is provided by statute that an equity of redemption may be sold on execution, and that a suit in equity to redeem the land may be brought within one year after the sale, the time of limitation is to be reckoned from the actual sale, and not from the commencement of the levy.2, Upon the same prin- ciple it is held that the limitation of actions to recover lands sold for taxes begins to run from the time when the deed is recorded.2 Where a surety paid off an execution levied on his property, which execution was afterwards quashed for want of jurisdiction, it was held that the statute did not begin to run against the surety’s right of action to recover the amount paid until the date when the execution was quashed.* § 190. Collateral Security.— When collateral security is given for the payment of a debt this will be presumed to be due on demand if it does not otherwise appear.’ But where a mortgage of real property is assigned as collateral ‘security for a debt other than the mortgage debt, and the mortgage is foreclosed by the assignee, by whom the land is afterwards sold, the debt to secure which the assignment is made is not 1 Lytle v. Mehaffy, 8 Watts, 267; Rodman v. Hedden, 10 Wend. 500. 2 Houghton v. Field, 2 Cush. 141. 8 Leffingwell v. Warren, 2 Black (U. S.), 599; Douglass v. Tullock, 34 Iowa, 262. In Alabama, under Code 1876, § 464, the limitation runs from the time when the deed is executed by the judge of probate to the pur- chaser at the tax sale, this being in contemplation of law the true date of the sale. Jones v. Randle, 68 Ala. 258; Lassiter v. Lee, id. 287. So, it seems, in Louisiana, the limitation runs from the time of sale. See R. S. 3392, 2376; R. C. C. 3543; Roberts v. Zansler, 34 La. Ann. 205. 4 Benton v. Roberts, 63 Ga. 672. 5 Espinosa v. Gregory, 40 Cal. 58. 264 ACTIONS OF CONTRACT. [cHaP. IV. paid by the foreclosure, but only by the actual sale and con- version into money ; and when the debt so secured is that of another person, the right of action of the mortgagee against him, as for money paid to his use, is not barred by the stat- ute until the expiration of six years after such sale and conversion.! G) Miscellaneous Cases. § 191. Action against Tenant for Mesne Profits: Mandamus: Set-off. — The tenant becomes liable to his landlord for mesne profits when he surrenders the possession, and the limitation to an action for these runs from that time.2. In many states mandamus proceedings are held to fall within the effect of the statutes of limitation.2 And the statute limitation of the time for suing out a mandamus begins to run from the time when the facts creating the respondent’s duty are complete, and not from the time of demand and refusal; otherwise, by delaying demand and refusal, the plaintiff might suspend the operation of the statute indefinitely. Where one agreed to pay such a sum as a referee should allow him on a claim in set-off, it was held that the right of action accrued against him for the amount allowed when judgment was entered on the record, and that the fact that judgment was afterwards reversed did not affect the rights of the promisee, as his rights became vested on the entry of judgment.® 1 Brown v. Tyler, 8 Gray, 135. 2 Doe v. Jones, 6 B. Mon. 388. 8 Auditor v, Halbert, 78 Ky. 577. So in New York, under the Code of Civil Procedure, § 414. People v. French, 138 Abb. N. C. 4138, s. c. 81 Hun, 617. * Prescott v. Gonser, 34 Iowa, 175; People v. French, supra. Where a county may be sued on its ordinary warrants and compelled by man- ‘damus to levy a tax to pay them, the statute of limitations begins to run against the proceeding from the date of the issue of the warrants. Gold- man v. Conway County, 2 McCrary, 327. It is held in Arkansas that the bar of the statute cannot be pleaded to a petition for mandamus to com- pel a revenue officer of the county to take county scrip in pee of taxes. Whitthorne v. Jett, 89 Ark. 139. 5 Chaplin v. Wilkinson, 62 Barb, 46. For other cases bearing upon the question as to when the cause of action accrues, see §§ 27, 141 and notes, ante. SEC. V.] MUTUAL ACCOUNTS. 265 Note. Limitation of Divorce Proceedings. In England there is no statute of limitations applicable to proceedings for divorce; but in some of the United States the statutes either expressly or by implication limit the period within which, after the discovery of the offence, divorce pro- ceedings must be instituted. Such a statute acts as an absolute bar. So in New York; and see Moulton v. Moulton, 2 Barb. Ch. 809. But in the absence of a statutory limitation, it would seem that the lapse of time between the occurrence of a ground for divorce and the application there- for may, if not satisfactorily explained, be good ground for refusing the divorce, since the delay may furnish strong evidence, or even a presump- tion, of condonation or connivance. Bishop, Marriage and Divorce, § 410, and cases cited; Mosely v. Mosely, 67 Ga. 92. : SECTION V. MUTUAL ACCOUNTS. § 192. Statute generally runs from Date of Last Item. — It is a rule, based upon a free equitable construction of the statute, that mutual accounts, if they contain one or more items charged within six years, are not barred by the statute, though other items of the account were charged more than six years before suit brought. This doctrine has been put upon two grounds; the first being that such accounts come within the equity of the exception in respect of merchants’ accounts. On this ground was based the decision in Cranch v. Kirkman, where, in an action for goods sold and delivered, a set-off was filed consisting of items charged by the defendant for goods sold the plaintiff at different times. Some of the items on both sides had been charged within six years. It was contended that the greater part of the set-off was within the statute. Lord Kenyon held that the case came within the exception as to merchants’ accounts, it being in the nature of a running and mutual account between the parties; although it was insisted by counsel that the exception extended to no other description of persons but merchants.1 The second ground of the rule, and that chiefly and generally relied on, is that the charging of the items within six years is clearly an 1 Cranch v. Kirkman, Peake, Ca. 164. , 266 ACTIONS OF CONTRACT. [cHaP. Iv. admission of an unsettled account, and so equivalent to evi- dence of a new promise, which takes all the other items out of the statute. “I take it,” said Lord Kenyon, in Catling v. Skoulding,! “to have been clearly settled, as long as I have any memory of the courts, that every new item and credit in an account given by one party to the other is an admission of ‘there being some unsettled account between them, the amount of which is afterwards to be ascertained; and any act which the jury may consider as an acknowledgment of its being an open account is sufficient to take the case out of the statute.” In an early case in Massachusetts, Sewall, J., said that it perhaps was not proper to consider the accounts in the case before him as excepted from the statute of limitations, in the name of “mutual” accounts, between merchant and mer- chant. It was, however, proper that the jury should take both accounts into consideration, there being on each side charges within six years; and this circumstance he regarded as evidence of a renewed promise, applicable to the whole account. ‘Sedgwick, J., said: “Tf any of the articles were delivered within six years preceding the commencement of the suit, they will draw after them the articles beyond six years, so as to exempt them from the operation of the statute.”* The same rule was held in Maine, the court re- marking that, though the relaxation of the express provisions of the statute had been said to have been carried far enough, and might in some instances have defeated the intention of the original law, yet the court was bound to administer the statute as qualified by judicial construction. In Pennsylvania, the 16T. RB. 189. 2 Cogswell v. Dolliver, 2 Mass. 217. ® Davis v. Smith, 4 Me. 337. By the statute of limitations of Maine, in an action on a mutual and open account current, the right of action for the whole balance is deemed to have accrued at the time of the last item proved in the account. But if a party sleeps on a demand without entering it on his account until the period of limitation is elapsed, he cannot withdraw it from the operation of the statute by entering it after- wards on hisaccount. In cases of unliquidated demands the statute begins to run when the right of action accrues; but if the parties after the right of action accrues come to a settlement and determine the sum due by mutual agreement, the statute begins to run from the time of the settle- ment. Zz parte Storer, 1 Davies (C. C.), 294; see post, § 197. SEC. V.] MUTUAL ACCOUNTS. 267 principle has been repeatedly recognized that it is immaterial whether the parties are merchants or not, the rule being taken to rest upon the ground of an implied promise! In England, the law upon this subject, as laid down in Catling 1 Van Swearingen v. Harris, 1 Watts. & S. (Penn.) 356; Thomson v. Hopper, id. 467, Kenhedy, J., dissenting; and see Hay v. Kramer, 2 id. 187; Chambers v. Marks, 25 Pa. St. 296; Brady v. Calhoun, 1 Penn. 140; App ». Dreisbach, 2 Rawle, 287. For other American cases in which the rule is recognized, see Costet v. Murray, 5 Johns. Ch. 522; Ramchander v. Ham- mond, 2 id. 200; Union Bank v. Knapp, 8 Pick. 96; Tucker v. Ives, 6 Cowen, 193; Chamberlin v. Cuyler, 9 Wend. 126; Edmonstone v. Thompson, 15 id. 559; Bass v. Bass, 6 Pick. 362; Same v. Same, 8 id. 187; Ashley v. Hill, 6 Conn. 248; McClellan v. Croften, 6 Me. 808; Moore v. Monro, 4 Rand. (Va.) 488; Newsome v. Person, 2 Hay. (N. C.) 242; Davis v. Tiernan, 2 How. (Miss.) 786; Fitch v. Hilleary, 1 Hill (S. C.), 292; Taylor ». McDon- ald, 2 Mill Const. (S. C.) 178; Kimball v. Brown, 7 Wend. 322; Ingraam v. Sherard, 17 S.& R. (Penn.) B47; Beltzhoover v. Yewell, 11 Gill & J. 212; Turnbull v. Strohecker, 4 McCord (S. C.), 215; Buntin v. Lagow, 1 Blackf. (Ind.) 573; Hibler v. Johnston, 8 Harr. (N. J. ) 266 ; Knipe ‘v. Knipe, 2 Blackf. (Ind.) 800; McNaughton v. Norris, 1 Hay. (N. C.) 216; Sumter v. Morse, 2 Hill (S. C.), 92; Mandeville ». Wilson, 5 Cranch, 15; Toland v. Sprague, 12 Peters, 300; Smith v. Ruecastle, 2 Halst. (N. J.) 357; Morris v. Root, 65 Ga. 686; Madden v. Blain, 66 id. 49; Chambers v. Chambers, 78 Ind, 400; Waffle v. Short, 25 Kan. 503; Hannan v. Engelmann, 49 Wis. 278. In New Hampshire, the doctrine was repudiated. Blair v, Drew, 6 N. H. 235. In this case the court said that the earlier decisions showed that the exception was then understood and applied.in a confined sense, according to its language, but there was no substantial reason why the statute should not be applied to bar items of account generally, more than six years old, as well as to bar promissory notes, there being no greater pre- sumption that the latter have been paid after such lapse of time than that the former have been adjusted, and there being more danger of false and unfounded demands being set up upon accounts than upon promis- sory notes, since the latter bear the signature of the party to be charged; and it is more usual to take up and cancel promissory notes, when paid, than to take receipts upon settled accounts, or to preserve such receipts when taken. It was said, further, there was quite as much need of a statute of repose in relation to accounts as to any other of the subject- matters of the statute. The court, therefore (relying upon the expres- sions of Mr. Justice Story, in Bell v. Morrison, 1 Peters, 351, 360, as to the danger of permitting an indeterminate and casual admission of the existence of an unsettled account to let in evidence aliunde to establish a debt), declined to hold that one item in an account has of itself any force or effect to take other items, which would otherwise be barred, out of the statute. The court intimated that the decisions in Cranch v. Kirkman, 268 ACTIONS OF CONTRACT. [cHapP. IV. v. Skoulding, seems still to prevail, and in a later case one of the judges said that he had always been so accustomed to consider a running account as taking the case out of the statute that it was like reverting to first principles to hear such a point debated.’ It is now provided, substantially, by the statutes of most of the states that in actions to recover the balance due, in cases where there have been mutual ac- counts between the parties the items of which are declared on whether by one party or both, the cause of action shall be deemed to have accrued at the time of the last item proved in such account. § 193. Item may Appear on either Side of the Account: Proof. — It makes no difference upon which side of the ac- counts the items charged within six years appear. If there be an item in either account charged within six years, it will take the reciprocal account out of the statute, though the and Catling v. Skoulding, were in some measure founded upon opinions which had been held in chancery, — referring to Scudemore v. White, 1 Vern. 456, where it was laid down that ‘‘ the statute is no plea in bar to an open account,’ though it does not appear whether the parties were merchants, or upon what principle the decision was founded. It was also stated by the chancellor, in Foster v. Hodgson, 19 Ves. 183, that Lord Talbot had held ‘‘ that an open mutual account was within the statute, unless there was some item of charge and debit within six years before the bill; overruling that case’? of Scudemore v. White. And the court in New Hampshire further referred to an observation of Lord Hardwicke, ‘* that the exception as to merchants’ accounts is not confined to open accounts merely; for between common persons, as long as the account exists, the statute does not bar.’? Lord Hardwicke, however, seems to have held a different doctrine in relation to the exception. Wellford v. Liddell, 2 Ves. Sen. 400. See also Bennett v. Davis, 1 N.H.19. However forcible the above reasoning might be were the matter res integra, and whatever indirect support it might derive from the general doctrine laid down in the modern cases in respect of the general effect of admissions and ac- knowledgments of debts of more than six years’ standing, the rule still prevails that mutual accounts, of however long standing, between per- sons who do not come within the description of ‘‘ merchants,” are not barred by the statute, if there be any items charged within the six years. 1 Peachy, In re; Seaber, Ex parte, 1 Deacon (Bankruptcy), 551. See also Ashby v. James, 11 M. & W. 542; Purden v. Purden, 10 id. 562; Wil- liams ». Griffiths, 2 Crompt. M. & R. 45; Mills v. Fowkes, 5 Bing. N. C. 455; Walker v. Lacy, 1 M. & G. 54; Forbes v. Skelton, 8 Sim. 335. SEC, V.] MUTUAL ACCOUNTS. ‘ 269 latter contain no item charged within that time.!_ The theory upon which the statute rests is that the credits are mutual, and that the account is permitted to run on with intention of a final adjustment by a settlement and payment of the balance.? Thus where a defendant was sued, in 1829, on a demand which had accrued in 1826, and proved an account against the plaintiff by way of set-off consisting of items which had accrued, some in 1826, others in 1822, and others in 1818, it was held that the items which had accrued in 1826 drew after them the previous charges, and saved them from the operation of the statute. The provision in the stat- ute of Massachusetts that, in actions “to recover the balance due upon a mutual and open account current, the action shall be deemed to have accrued at the time of the last item proved in the account,” does not apply exclusively to such actions as are brought on accounts in which debts and credits are stated and a balance struck, but extends also to cases in which the plaintiff seeks to recover the balance due him, although he declares only on the debit side of the account. And if the defendant does not file an account in set-off, nor prove items on his side of the account by way of payment, but relies on the statute, the plaintiff may avoid the statute by showing that there was a mutual and open account current and prov- ing an item charged on either side within six years. The account must be correct upon its face, and the plaintiff can- not enter a credit of recent date which the defendant disavows, without supporting it by proper proof. In Massachusetts, the plaintiff may ordinarily prove by his suppletory oath charges 1 Ord v. Ruspini, 2 Esp. 569; Tucker v. Ives, 6 Cowen, 195; Newsome v. Person, 2 Hay. (N. C.) 242; Davis v. Smith, 4 Me. 337; Marr v. Southwick, 2 Porter (Ala.), 351. 2 Green v. Disbrow, 79 N. Y. 1; Abbott v. Keith, 31 Vt. 525. 3 Chamberlin v. Cuyler, 9 Wend. 126; Wilson v. Calvert, 18 Ala. 274; Pridgen v. Hill, 12 Tex. 874; Same v. McLean, id. 420; Finney v. Brant, 19 Mo. 42; Penn v. Watson, 20 Mo. 13; Helms v. Otis, 5 Lans. (N. Y.) 187; Taylor v. Parker, 17 Minn. 469. 4 Penniman v. Rotch, 3 Met. 216, explaining Gold v. Whitcomb, 14 Pick. 188; Safford v. Barney, 121 Mass. 300; James v. Clapp, 116 Mass. 358. 5 Taylor v. McDonald, 2 Mill, Const. (S. C.) 178. See Hibler v. Johns- ton, 3 Harr. (N. J.) 266; § 77 et seq., ante. 270 ACTIONS OF CONTRACT. [cHapP. IV. in an account, yet he cannot so prove an item on the credit side of his own account for the purpose of preventing the operation of the statute of limitations. § 194. Accounts must show Reciprocity of Dealing: Trades- men’s Accounts. — The rule that items charged within six years draw after them other items, previously charged is con- fined strictly to mutual accounts, or accounts which show a reciprocity of dealing between the parties. Thus if the items in an account are all on one side, as between a tradesman and his customer, and there are some items which were charged within six years, but the others earlier, the former will not entitle the plaintiff to give evidence of the latter.? So credits given by one party on account, the other keeping no account, will not bring the case within the exception of mutual accounts.2 The same is true as to credits made by a 1 Penniman v. Rotch, 3 Met. 216; Hancock v. Cook, 18 Pick. 30. “The admission of the plaintiff's suppletory oath,” said Shaw,.C. J., “would be to extend a local rule of very questionable propriety, contrary to the rule and policy of the common law, the rule being one which courts have always been disposed to restrain within the limits prescribed to it by the usage on which it was founded. 2 Per Dennison, J., in Cotes v. Harris, Bull. N. P. 149; Turnbull v. Strohecker, 4 McCord (S. C.), 210; Hallock v. Losee, 1 Sandf. (N. Y.) 220; Palmer v. City of New York, 2 id. 318; Guichard v. Superveile, 11 Tex. 522; Judd v. Sampson, 13 id. 19. Mutual accounts imply entries by each party. If there are entries by one party only, there is no mutu- ality. Baker v. Mitchell, 59 Me. 223. If, in a continuous account, there are some items accruing within, and others beyond, the time limited by the statute, a payment made within that time and not appropriated will be presumed to be made on the account of the items not barred, so as not to defeat the bar as to the others. For mere payments upon account, for which credit is given, do not make the accounts mutual so as to prevent the limitation from attaching. Webster v. Brynes, 32 Md. 86; Adams »v. Carroll, 85 Pa. St. 209. But it was held, upon the general principles gov- erning indefinite payments, that the creditor might elect, at the trial, to apply the payment to that part of the account which accrued beyond the period of limitation; but that he could not thereby take out of the stat- ute the excess of that part of the account over and above the payment. Mills v. Fowkes, 5 Bing. (N. Cas.) 455; Waller v. Lacy, 1 Man. & G. 54. 8 Prenatt v. Runyan, 12 Ind. 174; Dyer v. Walker, 51 Me. 104; Peck v. New York Steamship Co., 5 Bosw. (N. Y.) 226; Weatherwax v. Co- sumnes, 17 Cal. 344. SEC. V.] MUTUAL ACCOUNTS. 271 debtor in a statement of account signed by him;! and as to a sale of goods to one holding the vendor’s note.? It is held that transactions four years apart, for one of which no account was ever rendered before suit brought on the other, are not reciprocal demands.2 The true rule would seem to be that the going through an account, with items on both sides, and striking a balance, converts the set-offs into pay- ments, but the going through an account where there are items on one side only® does not alter the situation of the parties or constitute a new consideration.t Against the de- mands of tradesmen, artificers, etc., the limitation generally runs from the day of the delivery of each article or each piece of work done, and the mere continuation of the supply of goods or of the work done does not interrupt it. The claim in such cases is made up of as many separate demands as there are parcels of goods or commodities, or performances of distinct pieces of work; and the statute runs as to each from the time of delivery or performance.> This, however, does not affect the rule that the statute does not begin to run against a claim based upon service, as of an attorney in con- ducting a suit, in which case the statute only begins to run from the completion of the service.® § 195. Mutuality depends on Agreement of the Parties, Bx- press or Implied. — The principle runs through all the cases that there must, in order to bring the case within the ex- ception, be a mutual credit founded on a subsisting debt on the other side, or an express or an implied agreement for a set- off of mutual debts.’ A natural equity arises when there are 1 Dixon v. Lyons, 13 La. Ann. 160. 2 Clark v. McGuire, 35 Pa. St. 259. 8 Loeffel v. Hoss, 11 Mo. App. 183. ; 4 Ashby v. James, 11 M. & W. 542, per Alderson, B.; Smith v. Forty, 4C. & P. 126; and see Allison v. Pennington, 7 Watis & S. 180. 5 Evans’s Pothier, 1. 6 Foster v. Jack, 4 Watts, 334; Rothery v. Mannings, 1 Barn. & Ad. 15; Harris ». Osbourn, 2 Carr. & Mar. 629. 7 Ingraam v. Sherard, 17 S. & R. 347; Fox v. Smith, 6 How. (Miss.) 346; Gordon v. Lewis, 2 Sumner (C. C.), 143; 8, c. id. 628; Gass v. Stin- son, 3 id. 98, In Iowa, ‘continuous, open, current’? accounts, without 272 ACTIONS OF CONTRACT. [cHapP. IV. mutual credits between the parties, or where there is an ex- isting debt on one side which constitutes a ground of credit on the other; or where there is an express or implied under- standing that mutual debts shall be a satisfaction or set-off pro tanto between the parties.1_ Thus an account due to the firm of A & B by C, and an account due C by A after the dissolution of the firm by the death of A, do not constitute an open and mutual account current, and all the items of each account not contracted within six years are barred.2~ Where it appeared that goods in which both parties were interested were sent to the defendant, who agreed to be accountable for the share of the plaintiff or the proceeds thereof, and to charge no commission on the sale, Kent, C., thought there was no account current between the parties and no mutual and recip- rocal demands, since the demand was all on one side except for charges of expenses and commissions incident to the very subject-matter’ In error Spencer, C. J., held that on one part there was no account at all,* but that it was a case of a joint purchase of goods, where one of the purchasers takes all the goods and is to account for a part of the profits, and that _ such a case was not within the reason or principle of the ex- ception, which must have intended open and current accounts where there was mutual dealing and mutual credits. So where payments on account are made by one party for which credit is given by the other, it is an account without reciprocity, and only upon one side. If there be one item more than six reference to their mutuality, are barred only from the date of the last item. Moser v. Crooks, 32 Iowa, 172. 1 Per Story, J..in Howe v. Sheppard, 2 Sumner (C. C.), 410. See Penniman v. Rotch, 3 Met. 216; Spong v. Wright, 9 M. & W. 629; Safford v. Barney, 121 Mass. 300. 2 Eldridge v. Smith, 144 Mass. 35. 8 Coster v. Murray, 5 Johns. Ch. 522. 4 Murray v. Coster, 20 Johns. 576. ® See also Kimball v. Brown, 7 Wend. 822; Chamberlin v. Cuyler, 9 id. 126; Spring v. Gray, 6 Peters, 151; Toland v. Sprague, 12 id. 300; Edmonstone v. Thompson, 15 Wend. 554. 6 Ingraam v. Sherard, 17 S. & R. 347; Parker v. Schwartz, 136 Maas. 30; Fitzpatrick v. Phelan, 58 Wis. 250; Looney v. Levy, 85 La. Ann. 1012; Harrison v. Hall, 8 Mo. App. 167; Harris v. Jackson County Agri- cultural Board, 9 Bradw. (Ill.) 272. SEC. V.] MUTUAL ACCOUNTS. 278 years old, and the mutual accounts be then opened, the one item is barred. It was held that a shopkeeper’s account embracing charges for articles sold, some of them within six years before action brought, and also containing credits given more than six years before action brought, was not a mutual account so that the charges within the six years would take the previous charges out of the operation of the statute.? § 196. Applications of the Rule.— Where it appeared that the plaintiff had opened an account with the defendant in 1830, and continued to make charges till 1833, and brought an action on his account in 1838, and proved that the defend- ant delivered to him an article on account in 1830, it was held that there was an open and mutual account current and that no part of the plaintiff’s charges were barred by the statute? So where the plaintiff exhibited an account, in which he gave defendant credit for an article charged within the time limited, and the defendant claimed the credit and attempted to prove that it should have been more, it was held that this was equivalent to keeping an account by defendant against plaintiff, and took the whole account out of the statute* In 1804 the father of B and C delivered to B, in England, £75, with directions to pay the same to C on the latter’s arri- val in America. In 1818 C came to America where B was then resident, and accounts on both sides immediately com- menced between them and continued running until 1826. The £75 was charged in the account of C against B. It was held that these mutual accounts, including the item of £75, were not within the statute; some of the charges having been made within the time limited by the statute. A banking firm 1 Brown, Actions at Law, 66; 2 Saund. 127, note a; Cottam »v. Partridge, 4 Mann. & G. 271. 2 Gold v. Whitcomb, 14 Pick.188. See remarks on this case by Shaw, C. J., in Penniman v. Rotch, 3 Met. 216, 223. 8 Penniman v. Rotch, 3 Met. 216. * Newsome v. Person, 2 Hay. (N. C.) 242. 5 Knipe v. Knipe, 2 Blackf. (Ind.) 340. An interval of one year and nine months between the respective dates of two items was held not to prevent the statute from running from the date of the last item. Keller v. Jackson, 58 Iowa, 629. 18 274 ACTIONS OF CONTRACT. [cHapP. Iv. which, on opening an account with a customer, had agreed to | allow him interest on the balances which from time to time should be found standing to his credit, set up the statute as a defence to a bill filed against them by the customer for an account. The account, as it stood in the bankers’ book, showed a considerable balance due the customer, but there being no item in it, or evidence of any transaction connected with it, of a date within six years prior to the filing of the bill, nor any suggestion that the bankers were bound by the agreement, or otherwise, actually to enter the interest as it became due, to the credit of the customer, or that they had omitted so to do with fraudulent intent, the defence was al- lowed to prevail! Where in an action by a tradesman against his customer there were two items of credit, — one for money paid by the defendant to the plaintiff, and the other for goods returned, —and also the account of a firm, of which the de- fendant was a member, against the plaintiff, it was held that this was not a case of mutual accounts, and therefore that all items of more than six years’ standing were barred.? So where A sold goods to B for cash, and other goods to be paid for in goods, and B delivered to A goods more than sufficient to pay for those which he had received to be ‘paid for in goods, it was held that this was not such a mutual account between the parties that one item being charged within six years would take the whole out of the statute. But the items of payments and receipts by two tenants in common concerning their joint estate constitute “an open and mutual account current;”# and accounts between copartners are mutual.® 1 Foley-v. Hill, 1 Phillips (Ch.), 399. 2 Hay v. Kramer, 2 W. & S. 137. 8 Lowber ». Smith, 7 Pa. St. 381. * Dickinson v. Williams, 11 Cush. 258. A drawer of bills of exchange which have been accepted for his accommodation by another person, for a commission, cannot create a debt against the acceptor by paying them; and the effect of the statute of limitations upon other dealings between the parties is not avoided by the fact that both parties, for their own 5 Bradford v. Spyker, 82 Ala. 184. Pensions unpaid for a series of years do not constitute such running accounts as to take them out of the application of the statute limitation prescribed by Rev. Stats. U.S. § 1069. Leonard v. United States, 18 Ct. of Cl. 382. SEC. V.] MUTUAL ACCOUNTS. 275 § 197. Limitation runs from Date of Stated Account: Written Acknowledgment. — Under the application of the statute of James I.,so soon as an account becomes stated it ceases to be a mutual account, and the balance which is ascertained and admitted to be due from one party to the other becomes im- mediately subject to the operation of the statute as an original and independent demand.! By the stated account being allowed convenience, entered such acceptances and payments in their respective books under one general account with their other dealings. Stickney v. Eaton, 4 Allen, 108. The statute applies only to accounts due and paya- ble on the day of entry, and not to accounts for articles sold on credit. Effinger v. Henderson, 33 Miss. 449. When there are mutual accounts, the defendant may set off so much of his account as accrued within six years prior to the plaintiff’s suit. Rollins v. Horn, 44 N. H. 591. In an action upon a memorandum given for a sum to be accounted for on settle- ment, the defendant may set off balances due to him from the /plaintiff at its date, though this was more than six years before the beginning of action. Shattuck v. Shattuck, 16 N. H. 242. See § 142, ante. But the defendant will not be permitted, in set-off, to leave out of his specification items which represent a legal indebtedness, and thereby be enabled suc- cessfully to plead the statute; and this although the defendant did not in- tend to trust the plaintiff, the items having been sold and charged by the defendant’s agent acting within his authority. Chapman v. Goodrich, 55 Vt. 354. 1 Webber v. Tivill, 2 Saund. 124, 127 note a.; Farrington v. Lee, 1 Mod. 270; Martin v. Delboe, 1 id. 70; Williams v. Griffiths, 2 Cr. M. & R. 45; Mills v. Fowkes, 7 Scott, 444; Cottam v. Partridge, 4 M. & Gr. 271; Clark v. Alexander, 8 Scott, N. R. 147; Waller v. Lacy, 1 M. & G. 54. In Knox v. Gye, L. R., 5 H. L. 674, Lord Westbury said that the provision of the Act 19 & 20 Vict. c. 97, § 9, that a subsequent transaction would not remove the bar of time where an account had already ceased for six years, was directed against the erroneous notion that an account which had been barred by lapse of time might be considered as opened and re- vived by the receipt of a subsequent sum of money more than six years after the date of the last entry. In Scotland, the term of prescription does not begin on an account until it is closed. The terminus a quo, the period from which the prescription begins to run, is the date of the last item when the account is closed, or of the item which precedes an inter- ruption in the account. 1 Bell’s Com. 251. See also Ramchander v. Hammond, 5 Johns. (Ch.) 200; Toland v. Sprague, 12 Peters, 300; Spring v. Gray, 6 id. 156; Purden v. Purden, 10 M. & W. 562. The statute begins to run in cases of an adjustment of an account, from the time when the adjustment is made. Storer, Ex parte, 1 Davies (C. C.), 294; Higgs v. Warner, 14 Ark. 192; Breckenridge v. Baltzell, 1 Carter (Ind.), 333. 276 ACTIONS OF CONTRACT. [cHap. Iv. to remain open either party is made dependent for the recov- ery of the balance dué him from the other upon the promise which the law raises on the part of the other to pay such balance. What was before an implied promise to pay what was reasonable becomes by such liquidation and stating of the account an express promise to pay asum certain. An account stated, therefore, implies an agreement between the parties that all the items on both sides are justly charged ;? and the ascertained and acknowledged balance may be recovered in an action of assumpsit founded on the implied promise.? All intricacy of account or doubt as to which side the balance may fall is at an end The case is like that of a guardian exhibiting a balance in his hands, he being thereafter no longer a trustee, but a debtor for the balance stated, and therefore protected by the statute at the end of six years.6 It is to be observed, however, that where the statute provides that new acknowledgments or promises not in writing shall not be effectual to take a claim out of the operation of the statute, an account stated will not prevent the running of the statute against the previously existing liabilities included therein, un- less it be supported by evidence of some acknowledgment in writing, signed by the party to be charged.§ § 198. Distinction between Accounts closed and Accounts stated: Question of Fact. — But an account closed is not 1 McClellan v. Crofton, 6. Me, 337. 2 See Davis v. Tiernan, 2 How. (Miss.) 786. 8 Ashley v. Hill, 6 Conn. 248. 4 Watson v. Lyle, 4 Leigh (Va.), 249. . 5 Green v. Johnson, 3 Gill & J. (Md.) 889; Bull v. Towson, 4 W. & S. 557. If an item be overlooked in making up the account stated, the ac- count will not be reopened in a court of law to take such item out of the operation of the statute of limitations, for ‘‘it would be doing great vio- lence to go behind . . . stated accounts to inquire if, at some former period during the trade between the parties, ... a mistake did not happen, which if corrected would make the balance . . . to be either too little, or too great, or on the other side.” Union Bank v. Knapp, 3 Pick. 96, 114, and see Lancey v. Maine Central Railroad Co., 72 Me. 84. ® Chace v. Trafford, 116 Mass. 529; Sperry v. Moore, 42 Mich. 358, and see § 93, ante. Such provision was enacted in England, Stat. 9 Geo. IV. c. 14, and occurs in the statutes of most of the United States. SEC. V.] MUTUAL ACCOUNTS. 277 necessarily an account stated and liquidated. It may become closed by the death of one of the parties, which clearly is not a statement, and still less a settlement or an adjustment of a balance! The question whether an account be both closed and settled is, when the issue arises, to be determined by a jury.? The mere fact of the rendering an account by one party does not give it the character of a stated account. The other party must receive it, and, by implication at least, admit the correct- ness of the items. But if he claim the balance found in his favor, or offer to pay the balance found against him, then the account becomes a stated account. It is not material that the account has not been made out between the parties? An account current, sent by a foreign merchant and not objected to by the other party for two years, has been held an account stated. T shipped merchandise by P, to Gibraltar, and P, on arriving there, placed the goods in the hands of 8, and re- ceived advances from him thereon. In 1825, S sold the goods, and transmitted an account of sales, as of the merchandise received from P, to T, stating the balance of the proceeds as $2578. T, in 1825, wrote to S directing him to remit the amount, deducting one thousand dollars which had been ad- vanced by S on the goods, and which had been remitted by P toT. S refused to make the remittance, alleging that P was largely indebted to him. Suit was not commenced by T against S until August, 18384. The account was held to be a stated account, and the statute of limitations was applied to ité § 199. Balance found may be Foundation of New Account.— The balance, when found and assented to, may be the com- mencement of, and constitute an item in, a new mutual ac- count; for “if, after an account stated, upon the balance of it a sum appear due to either of the parties, which sum is not paid, but is afterwards thrown iato a new account, it is now 1 Bass v. Bass, 6 Pick. 362; Same v. Same, 8 id. 187. 2 Td.; McClellan v. Crofton, 6 Greenl. 308. 8 Toland v. Sprague, 12 Peters, 300. 4 Freeland v. Heron, 7 Cranch, 147. ® Toland v. Sprague, 12 Peters, 308. 278 ACTIONS OF CONTRACT. [cHaP. Iv. slipped out of the statute again.” And if the account is thus renewed and continued the statute will be a bar to the items of the first account, though the balance will be saved. Thus, if six years after the adjustment of the former account, it should be found that the balance was incorrect, and an action is brought for the recovery of a different balance, the statute may be pleaded! This principle was followed in Massachu- setts, in an action of assumpsit by a bank against a depositor. It appeared that the usage of the bank was to balance the pass-books of the depositors at the end of every month, and to make the balance, found in each, the first item in a new account. It was held that, where an account had been so balanced, it was no longer an open and running account, and that the parties could not go behind such settlement without leave obtained in equity to inquire whether the balance was founded in error? 1 Farrington v. Lee, 1 Mod. 270. 2 Union Bank v. Knapp, 3 Pick. 96,110. See also Fergusson v. Fyffe, 8 Cl. & Fin. 121; Clark v. Jenkins, 3 Rich. Eq. (S. C.) 314. In Union Bank v. Knapp, supra, Putnam, J., said: ‘‘ We do not think that the facts of the case at bar prove this account to have been open and running from November, 1817, to January, 1824. On the contrary, it is proved that the accounts have been stated and settled monthly. . . . To what is the following account to be added? Not to the former account as it stood, but to the balance of the former account, as it had been settled. That balance constitutes one of the items of the new account; and if the new account shall run on mutually to a time within six years, that balance, although arising more than six years before, will be saved and drawn out, as it is sometimes expressed, from the operation of the statute, by the charges which are within six years. . . . For example, suppose that the balance of the account stated in November, 1817, had been carried to a new account, which had continued to run on mutually, until January, 1824, without any intervening settlement. In such a case the law would infer a promise to account for all the items in such new account, and to pay the balance of the same. But this construction will not avail the plaintiff, because the account which was added to the balance of Novem- ber, 1817, did not continue open and running till January, 1824, but was open and running only for a month at atime. . . . The acknowledgment, which is to be inferred from the mutual and open accounts, within six years, should be limited to the items appearing in the same. If, for ex- ample, one of the items should be a sum of money, being the balance of a former account settled more than six years before the action, it would be protected from the operation of the statute by the items which are SEC. VI. ] MERCHANTS’ ACCOUNTS. 279 SECTION VI. MERCHANTS’ ACCOUNTS. § 200. Excepted by Statute of James: Reason: When Excep- tion applies. — By the statute 21 James I. c. 16, § 8, the limitation is applied to “all actions of account, and upon the case, other than such actions as concern the trade of mer- chandise between merchant and merchant, their factors or servants.” In the statutes of limitation in this country, this exception has not generally been retained, and it is now re- pealed in England by the statute 19 and 20 Vict. c. 97, § 9.1 The exception seems to have been inserted in the statute of James I. in order to give merchants a like time for proceed- ing at law to compel their correspondents or agents to furnish accounts as they would have to enforce an account by a suit in equity. The words “other than in an action of account” would seem to refer, strictly, to actions brought for an ac- count, and the court was of opinion that the exception was confined to accounts in respect of which the one party might maintain against the other an action of account, or an action upon the case for not accounting.” within the six years. In such a case the law would infer a promise to settle for all the items of the new account. The promise and acknowledg- ment may reasonably be extended so far, but not to the various charges and disbursements in former times from which the balance charged in the open account arose. What of doubt now appears might in the time of the transaction have been explained by papers, vouchers, or witnesses; but it would be doing great violence to go behind the account, which is open and current, and behind a hundred or more stated accounts, to in- quire if at some former period during the trade between the parties, perhaps some twenty or forty years ago, a mistake did not happen in one or more of the settlements, which, if corrected, would make the balance constituting one item in the open account to be either too little or too great, or on the other side.”’ 1 The exception appears to exist in Rhode Island, New Jersey, Virginia, West Virginia, Maryland, Kentucky, and Texas. 2 Cottam v. Partridge, 4 Man. & Gr. 290; Inglis v. Haigh, 8 M. & W. 769. This view ‘‘ was much assisted by considering that the exception clearly would not apply to an action of debt, brought for the very same 280 ACTIONS OF CONTRACT. [cHaP. Iv. § 201. Whether applied to Accounts more than six years old: Conflicting Authority.— The question whether the exception as to merchants’ accounts applies to accounts in which there has been no item charged within six years was the sub- ject of much conflicting adjudication. On one side it was contended that the exception expressly excludes merchants’ accounts, and that, if the action concerns the trade of mer- chandise between merchant and merchant, no length of time is a bar to suit. On the other hand it was contended that the exception extends only to cases in which it appears that there have been transactions within six years. In one case the judges certified that the action was not barred, because the account was not finished, and also because it was between merchants.! The latter ground assumed seems to favor the construction that matters of merchandise between merchants are not within the statute. This case has, however, been pronounced too loose, and too concise, and to rest too much upon the first ground, to be regarded as of much authority.? Lord Hardwicke held, since between common persons the statute is not ‘a bar so long as the account is continued, that the exception must mean something more; and he was dis- posed to think that, as between merchants, an open account would not be barred though there had been no dealing within six years. Other English authorities favor the view that the exception extends to no other accounts than those in relation to which something has been transacted within six years,* and Lord Hardwicke gave an opinion on the subject not rec- demand; and it is very difficult to believe that the legislature could have intended to preserve the right in one form of action, but to bar it in another.”? The court were aware ‘that, in confining the exception to actions of account, they were deciding, in some measure, in opposition to what is represented, though not very confidently, to be the law, by Mr. Sergeant Williams, in one of his very learned notes to Webber v. Tivill.”? 2 Saund, 124. 1 Sandys v. Blodwell, W. Jones, 401. 2 Per Kent, C., in Coster v. Murray, 5 Johns. Ch. 522. 8 Referred to by Lord Eldon, in Foster v. Hodgson, 19 Ves. 180. See also dicta of Lord Kenyon in Catling v. Skoulding, 6 T. R. 189, and re- marks of Kent, C., in Coster v. Murray, supra. 4 Webber »v. Tivill, 2 Saund. 124; Bridges v. Mitchell, Gilb. Eq. 224. SEC. VI.] MERCHANTS’ ACCOUNTS. 281 oncilable with that already referred to. He observed “that it was a pretty difficult construction here to apply that excep- tion in the statute relating to merchants’ accounts. It is not that the defendant may not plead the statute, in all cases where the account is closed and concluded between the par- ties, and the dealing and transaction over; it was not the meaning to hinder that; but it was to prevent dividing the account between merchants, where it was a running account, when, perhaps, part might have begun long before, and the account never settled, and perhaps there might have been dealings and transactions within the time of the statute.’ On a suit in equity for an accounting between merchants, Lord Northington said that ‘merchants’ accounts, after six years’ total discontinuance of dealings, were as much within the statute as other accounts. The difference was, that a continuance afterwards would prevent the statute run- ning against merchants’ accounts, but would be a bar to all articles before six years in other accounts.”? So, on a bill for an account, and plea of the statute, with an averment that it was not a merchants’ account, Lord Rosslyn held that the meaning of the exception was that, if any transaction be- tween the parties took place within six years, none of the transactions should be barred; but that, when all the trans- actions were prior to six years, the statute might be pleaded, as well to merchants’ accounts as others. Lord Eldon, in a still later case, considered the point as unsettled.‘ § 202. English rule settled in Favor of the Application. — But, whatever doubt may heretofore have existed in Eng- land on ‘the question whether the exception as to merchants’ accounts applied to accounts in which there has been no item charged on either side for more than six years, is set at rest 1 Wellford v. Liddell, 2 Ves. 400. 2 Martin v. Heathcote, 2 Eden, 169. 3 Crawford v. Liddle, cited by counsel in Jones v. Pingree, 6 Ves. 580, where the same question was discussed, but the case went off on another point. So in Duff v. East India Company, 15 Ves. 198, the question was treated as an open one, but the Master of the Rolls decided the case on other grounds. 4 Foster v. Hodgson, 19 Ves. 180. 282 ACTIONS OF CONTRACT. [cHaP. Iv. by a decision in the House of Lords on appeal from the Court of Chancery. The question here arose upon a bill in equity between merchants for an account, in which there had been no item charged on either side for a period exceeding six years before the filing of the bill. The defendant set up the statute of limitations as a bar to the account set forth by the bill; and it seems that it would have been a bar if the excep- tion as to merchants’ accounts were confined to cases where there has been some item of account charged within six years. The Vice-Chancellor held the case to be within the exception in the statute, and the House of Lords affirmed the decree.! § 208. Weight of American Authority in same Direction. — Conflicting opinions have been held upon this question in the American courts, but the weight of authority is clearly in favor of the English construction. In Pennsylvania, the de- fendant, by way of set-off to an action on a bond, offered to show that after the execution of the bond, and before the com- mencement of the suit, the plaintiff had become indebted to him in a sum exceeding the amount of the bond, upon an ac- count still remaining unsettled between them as merchants, concerning sales of merchandise made by the plaintiff abroad as agent and factor for the defendant. The plaintiff objected that there was a lapse of seventeen years since the date of the last item of the accounts, that no proof was offered of any subsequent demand for the amount of the items proposed to be set off, and that the statute of limitations was therefore a bar to the action. The court, however, were of opinion that the accounts on which the set-off had been claimed were not barred.2 The Supreme Court of New Jersey, also held, in a case where both parties were merchants and the accounts be- tween them had been of long standing, that, although the last item was charged more than six years before action begun, 1 Robinson v. Alexander, 8 Bligh (N. S.), 852. See also opinion of the court in Inglis v. Haigh, 8 M. & W. 781; Browne, Actions at Law, 66; Forbes v. Skelton, 8 Sim. Ch. 335 ; Williams v. Griffiths, 2 Crompt. M. & R. 45. 2? Stiles v. Donaldson (1796), 2 Dallas, 264. See also Brown v. Ag- new, 6 Watts & S. 235. SEC. VI.] MERCHANTS’ ACCOUNTS. 283 the account was not barred.!. On the other hand, in a case in chancery in New York, Kent, C., said that although it were admitted to be a case of merchandise between merchant and merchant, the sale of the goods, and the receipt of the pro- ceeds by the defendants, and their accountability for them, were all prior to six years before suit brought; and it became a serious question whether the statute did not apply to such a case. The Chancellor after reviewing the authorities on the subject was strongly inclined to favor the application of the statute to open merchants’ accounts, when there have been no transactions for more than six years before the com- mencement of the suit.2. In South Carolina the court were in- clined to follow the opinion of Chancellor Kent and to favor the rule that merchants’ accounts are barred if there is no item charged within the time limited, although they did not decide the point.2 Later, in Massachusetts, in an action by an executor, the defendant pleaded non assumpsit within six years, and the plaintiff replied that the testator and defend- ant were merchants, and that the cause of action arose out of their mutual dealings and accounts and concerned the trade of merchandise carried on between them. The court, after reviewing the conflicting decisions upon the question, decided that the statute could not be pleaded in bar to an action upon an open account “concerning the trade of mer- chandise between merchant and merchant, although none of the items come within the six years.” The court said: “As the language of the statute is clear, we shall ground our de- cision upon it. . . . The words are, ‘all actions of account and upon the case other than such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants,’ shall be commenced within the time limited. Such accounts, then, are not at all within the statute. This is , the most natural construction, and, indeed, the only one which the words will allow.”* In a subsequent case, between 1 Franklin v. Camp (1793), 1 Coxe (N. J.), 196. 2 Coster v. Murray (1821), 5 Johns, Ch. 522; and see Murray v. Cos- ter, 20 Johns. 576 ; Kimball v. Brown, 7 Wend. 322. 8 Van Rhyn v. Vincent (1826), 1 McCord, Ch. 310. 4 Bass v. Bass_(1828), 6 Pick. 364. 284 ACTIONS OF CONTRACT. [cHap. Iv. the same parties, the question arose whether the demand sued, although originally a merchants’ account, had not lost that character, since the death of the testator, more than six years before the commencement of the suit, had closed the account, so that the balance then existing would become lia- ble to the operation of the statute of limitations like an ac- count stated; which, as has been shown,! ceases to be a merchant’s account, so far as respects the exception in the statute. The court held that the death of one of the parties, the account remaining unsettled, would not so change the nature of the demand as to take it out of the exception2 A like decision was rendered in Maine, where the court held that whatever the accounts are which were intended to be de- scribed by the exception in the statute, such accounts are in express terms excluded from the operation of the statute bar, as effectually as if they had been embraced in a proviso that as to such accounts the statute should have no operation or effect.2 So, in Mississippi, the court held that a replication to the plea of the statute was good which set forth that the parties were merchants and that the cause of action was an account between them concerning the trade of merchandise.! § 204. Rule in the Federal Courts. — In an early case in the Supreme Court of the United States, involving the application of the statute of limitations of Virginia, — which, in so far as it relates to the exception of merchants’ accounts, was a tran- script of the English statute,—the defendant pleaded the- statute of limitations to an action of assumpsit for goods sold and delivered and for the hire of a slave. The plaintiff’s replication set up an account current of trade and merchan- dise had between the plaintiff and defendant as merchants. The rejoinder was that all accounts between the parties ceased ten years before action brought, and that no accounts had existed or been continued since. It was contended that the exception in the statute in favor of merchants’ accounts 1 See § 198, ante. 2 8 Pick. 187. 8 McClellan v. Crofton, 6 Greenl. 308. 4 Fox v, Smith, 6 How. (Miss.) 846; and see Davis v. Tiernan, 2 id. 786. SEC. VI.] MERCHANTS’ ACCOUNTS. 285 applied only to accounts current in which some items had been charged within the period of limitation, and that, if dealings between the parties had ceased during such period, the whole account was barred. Marshall, C. J., held, upon the construction of the statute, and without referring to au- thorities, that it was not necessary that any of the items should come within the time of limitation, and that the repli- cation was not repugnant to the declaration! The court, in a later case, adopted the same construction of the statute, saying that it grew out of the very purpose for which the ex- ception was enacted, which was to prevent the injustice and injury which would result to merchants having trade with each other, or dealing with factors and living at a distance, if the act of limitations were to run while their accounts were open and unsettled, so that the balance between the parties could not be ascertained, and the state of the accounts might be fluctuating constantly by reason of the continuous dealing between the parties.? § 205. What Cases fall within the Exception. —In order to bring an account concerning the trade of merchandise within the exception of the statute, such account must be both mu- tual and reciprocal, and current; for if the balance on account be stated and acknowledged, the limitation of the statute will apply to any action therefor brought after the lapse of the period of limitation? It seems that, in order to bring any given case within the exception, it must be such as to entitle the plaintiff to the common-law action of account, or to an action on the case for not accounting; and it follows that mere cross demands between strangers do not make a case falling within the exception.* 1 Mandeville v. Wilson, 5 Cranch, 15. 2 Toland v. Sprague, 12 Peters, 300. And see also Spring v. Gray, 6 id. 151. 8 See § 197, ante; Cotes v. Harris, Bul. N. P. 149; Bevan v. Cullen, 7 Pa, St. 281; Thompson »v. Fisher, 13 Pa. St. 310; Breckenridge v. Balt- zell, 1 Smith, Md. 217. 4 Browne, Actions at Law, 65; Cottam v. Partridge, 4 M. & G. 271. See Moore v. Strong, 1. Bing. N. C. 441. The case of Spring v. Gray, 6 Peters, 151, involved the consideration of the question as to what are 286 ACTIONS OF CONTRACT. [cHAP. Iv. § 206. Does not embrace Transactions between Banks. — Demands for money growing out of the trade of merchandise merchants’ accounts, and accounts concerning merchandise within the meaning of the statute. The case arose under the former statute of limitations of Maine, which as to the exception of merchants’ accounts was a transcript of the statute of James. The case was removed from the Circuit Court of the United States for the Maine district (see 5 Mason, 505), and the facts were as follows: The master of a ship, who with other members of a mercantile house, was an owner of the vessel which he com- manded, with the approbation of the firm signed a bill of lading to deliver certain articles of merchandise, the property of the shipper, at the port of destination of the vessel, ‘freight to be paid for the goods, as per agreement indorsed.’? The agreement indorsed was that the owners of the ship should have, as the freight of the ship, one half of the net profits on the proceeds of the goods, which were to be invested in a return cargo to be consigned to, and sold by, the shipper. The proceeds of the outward cargo were received by the shipper part in goods and part in money,— a portion of the cargo having been left unsold by the vessel where they were delivered. The transaction was made the subject of an accouut current by the owners of the vessel with the shipper of the goods, and a large balance was claimed to be due to them on the said account. The shipment was made in May, 1810; and in May, 1829, a suit was instituted for the recovery of the balance stated to be due on the account current. The defendants pleaded the statute of limitations, and the plaintiffs re- plied, setting up the statute exception as to merchants’ accounts. It was held that the bill of lading and the contract were not sufficient to main- tain the issue joined on the part of the plaintiffs, in their replication of merchants’ accounts. Marshall, C. J., said that the plaintiffs and de- fendants were undoubtedly merchants, but the former were likewise ship-owners. ‘They were the proprietors of vessels, which they hired to others for freight. A charter-party, a contract by which the owner lets his vessel to another for freight, does not change its character because the parties happen to be merchants. It is a special contract whereby a compensation is stipulated for a service to be performed. It is no more an ‘‘ account,’’ and no more connected with ‘ the trade of merchandise,’’ than a bill of exchange, or a contract for the rent of a house, or the hire of a carriage, or any other single transaction which might take place be- tween individuals who happened to be merchants. An entry of it on the books of either could not change its nature and convert it from an isolated transaction between individuals into an account concerning the trade of merchandise between merchant and merchant. The question must depend on the nature and character of the transaction, not on the book in which either party may choose to enter a memorandum or state- ment of it. So an account between two joint owners of a vessel was held not to be an account between merchant and merchant, or relating to the SEC. VI.] MERCHANTS’ ACCOUNTS. 287 between merchants may form a part of their mutual dealings. But the exception cannot be applied to transactions between banking institutions ; for these are embraced neither by the letter nor the spirit of the saving clause, and manifest reasons of public policy require that the liquidation of balances be- tween banks should be regular and frequent? Where it appeared that the dealings were between merchants on the one side and bankers on the other, Lord Eldon said: “ This bill has no allegation that the foundation of the suit is ac- counts between merchants relative to merchandise between merchant and merchant, unless it is considered as alleging that by implication, from the statement of the character in which the plaintiffs stood, and the business carried on,” — which inference he refused to adopt. This case was after- wards followed in deciding that the account kept by the joint owners of a plantation in Java, which they worked in copart- nership with certain merchants and agents at Bombay, to whom they became indebted largely in respect of moneys ad- vanced and paid for their use, was not a mercantile account within the meaning of the exception.* § 207. Nor Accounts between Copartners.— Accounts be- tween partners for a settlement of the partnership accounts do not concern the trade of merchandise as between mer- chant and merchant, and suits upon such accounts are not included in the statute exception® So it was held, in a suit in equity for an account brought by an executor of one trade of merchandise, within the meaning of the statute. Smith v. Dawson, 10 B. Mon. 112. A single transaction between two merchants is not included within the exception. Marseilles v. Kenton, 17 Pa. St. 238. Nor is an account with several debits for goods, and one credit of cash, such an account. McCulloch v. Judd, 20 Ala. 703. 1 Bass v. Bass, 8 Pick. 187; McClellan v. Crofton, 6 Me. 308. 2 Farmers’ Bank v. Planters’ Bank, 10 Gill & J. 442. 8 Foster v. Hodgson, 19 Ves. 180. 4 Forbes v. Skelton, 8 Sim. Ch. 335. In Bass v. Bass, supra, the question arose in an action of assumpsit, and it was held that it was properly left to the jury to determine the character of the account sued on, and whether or not it concerned the trade of merchandise. 5 Coalter v. Coalter, 1 Rob. (Va.) 17; Manchester v. Mathewson, 3 R. I, 237; Bradford v. Spyker, 32 Ala. 1384; Leavitt v. Gooch, 12 Tex. 95. 288 ACTIONS OF CONTRACT. [cHaP. Iv. partner against the surviving partner, that the suit did not concern merchants’ accounts, and so was not within the ex- ception, since the plaintiff's claim was founded upon a sup- posed undertaking of the defendant’s intestate to collect and account for the partnership debts! But it is held that the statute does not begin to run to bar a suit by one partner against his copartners for a settlement of the partnership ac- counts, so long as there are debts still due to and by the part- nership ;2 nor against a suit by one partner for money paid on behalf of the firm, until an account is settled and a balance struck.’ § 208. Settlements presumed after Twenty Years. — Though merchants’ accounts are not barred by the statute, yet it is evident that these, like all simple contracts or specialties, may be presumed to have been settled after the expiration of twenty years from the date of the last item charged in the account. And it is held, where an account, with the excep- tion of one item on the debit side and one on the credit side, has existed more than twenty years before action brought, that the one item on the debit side cannot be considered as reviving and “drawing down” the account, if it be a small item not apparently of a mercantile character, and especially if the defendant has ceased to be concerned in trade, and if the item is to be proved only by the plaintiff’s suppletory oath.* 1 Codman v. Rogers, 10 Pick. 112. 2 Jordan v. Miller, 75 Va. 442. 8 Holloway v. Turner, 61 Md. 217. # Hancock v. Cook, 18 Pick. 30. In this case Shaw, C. J., said: ‘We think the plaintiffs credit entry in his own book, verified by his own oath, is not competent evidence to prove a payment on account at that time, to rebut the presumption of payment arising from the lapse of ‘twenty years. It would be carrying a rule allowing a party to make evidence for himself much farther than it is carried by allowing an indorsement to be received as evidence of payment. An indorsement is nominally a substitute for, and in nature of, a receipt given to a party, and put upon the security so as to discharge and extinguish it, pro tanto. But the admission of the evidence relied on here would be extending a tule peculiar to this Commonwealth, of very questionable propriety, contrary to the rule and policy of the common law, and one which courts have always been disposed to restrain.’ SEC. I.] TORTS QUASI EX CONTRACTU. 289 CHAPTER V. APPLICATION OF THE STATUTE TO ACTIONS OF TORT. SECTION I. TORTS QUASI EX CONTRACTU. § 209. Limitation runs from Date of Tortious Act.— The action of assumpsit will lie for damages resulting from torts quasi ex contractu, that is, for malfeasance, misfeasance, and non-feasance, and in such cases the cause of action arises immediately on the happening of the default, and is not post- poned to await the actual occurrence of the damage thereby occasioned.! For, since the gist of the action is the negli- gence or breach of duty on the part of the defendant; and not the injury consequent thereon, the limitation begins to run from the time of such negligence or breach of duty; and this is the rule whether the action therefor be assumpsit or action on the case. Thus, in an action against an attor- ney for negligence in not investing the plaintiff’s money on good security, such neglect having occurred more than six years. before the action was brought, it was held that the remedy was barred, though the discovery of the default was made within six years.2 So where the defendant had agreed to remove his goods from a warehouse, but neglected to do. 1 Howell v. Young, 5 B. & C: 259; Battley v.. Faulkner, 3 B. & Ald. 288; Cook v. Rives, 18 S. & M. 328; Compston v. Chandless, 4 Esp. 18. 2.Northrop v. Hill, 61 Barb. 186; Argall v. Bryant, 1 Sandf. 98; Sin- clair v. Bank, 2 Strobh. 844; Ellis v. Kelso, 18 B, Mon. 296; Lathrop v. Snellbaker, 6 Ohio St. 276; Gustin v. Jefferson County, 15 Iowa, 158. 8 Brown v. Howard, 4 Moore, 508; s..c. 2.Brod.. & B. 73. 19 290 ACTIONS OF TORT. [cHaP. v. so; in consequence of which, the plaintiff, three years after- wards, was obliged to pay damages to the person to whom he had sold the warehouse, it was held that the cause of action accrued when the defendant neglected to remove the goods, and not when the plaintiff was obliged to pay damages.? Where the defendant had agreed to collect moneys due the plaintiff in another state, and on his own return to pay off a judgment standing against the plaintiff, which he neglected to do, it was held that the plaintiffs cause of action accrued on the defendant’s return and that the statute limitation in favor of the defendant would run from that time.2 So the right of a town to recover damages occasioned by the negligence of a railroad company accrues so soon as the liability of the company is fixed and ascertained.’ § 210. Reasons for the Rule.—The reason for the rule has been aptly stated in a case where A, being under a contract to deliver spring wheat to B, delivered winter wheat; and B, haying in turn sold the same as spring wheat, had in con- sequence, been compelled, by action, to pay damages to his vendee, and, afterwards sued A in assumpsit for breach of contract, alleging as a special injury the damages so recov- ered against himself. It was held that although the special damage occurred within six years, yet, as the breach of the contract had happened, and had been known to B, more than six years before the damage accrued, the statute of lim- itations was a bar to his action. Bailey, J. said, that “ this was an action for a breach of contract, and the cause of 1 M’Kerras v. Gardner, 8 Johns. 187. ? Baines v. Williams, 3 Ired. 481. But where a sheriff collected part of an execution, but failed to indorse the amount thereon, and afterwards collected the whole, but, upon the representation of the execution debtor that he had already paid a part, promised, if this were so, to refund the amount previously paid, it was held that the statute of limitations began to run from the time of the promise, and not from the time of receiving the money, or from the time of the failure to pay it over. Tarkinton v.: Hassell, 5 Ired. 359. See also, Howell v. Young, 5 B. & C. 259; s. 0. 8: Dowl. & R. 14; Rankin v. Woodworth, 3 Pa. St. 48; Smith v. Fox, 6 Hare, 386; s. c. 12 Jur. 130. 8 Veazie v. Penobscot R. R. Co., 49 Me. 126. SEC. I.] TORTS QUASI EX CONTRACTU. 291 action arises at the time when the contract is broken. Since that time certain damages have resulted from that breach of contract. The breach of the contract, however, is the gist of the action, and the special damage is stated merely as a measure of the damages resulting from that cause of action. One of the objects of the statute was, that actions should be brought to trial at a period of time when the defendant could be prepared, with his witnesses, to meet the charge, which would not be the case if the action might be post- poned to an indefinite period. ... Suppose the present plaintiff had sold the wheat to 8, and he had sold it again to A, and A to B, and B to C; then suppose C to wait for five years, and then to bring an action against B and recover; and that at the end of five years more B should bring an action against A, and that A at the end of another five years brought an action against S, and that S took five years more before he brought his action against the present plaintiff. Then each party, having acquired a new five years after the orginal transaction, brings an action against the present defendant.1 1 Battley v. Faulkner, 3 B. & Ald. 288. The doctrine as stated in the text was applied in what the court admitted to be a case of extreme hard- ship to the plaintiff. The defendant had contracted to sell the plaintiff a quantity of salt, but the salt having been destroyed, upon the plaintiff’s demand for delivery the defendant purposely prolonged negotiations till the statutory limitation for bringing the action had expired, and then refused delivery, whereupon the plaintiff brought suit. It was held that the action was barred, and that it should have been brought within six years from the demand, as the non-delivery at that time was the breach of the contract. Lord Campbell said: “It would have been very satisfac- tory to us if, consistently with the rules of law, we could have found evidence to show that any cause of action stated in the declaration arose to the plaintiff within six years before the commencement of his suit. There seems no doubt that the defendants have broken their contract with him, and that if he had commenced his action against them in Feb- ruary, 1832, instead of agreeing to the inquiry which was conducted so tediously, he would have been entitled to damages equivalent to the salt which remained undelivered. But this inquiry, through the fault of the company’s servants was not terminated till the 16th of May, 1838. Al- most as soon as the final refusal of the company to return any part of the purchase-money was communicated to the plaintiff, he commenced the present action It will, therefore, be an extreme hardship on him, if, by reason of this delay, which they occasioned, they may successfully defend 292 ACTIONS OF TORT. [cHaP. v. § 211. Applications of the Rule.— A promissory note was placed by the plaintiff in the hands of an attorney for collection, who commenced an action of assumpsit thereon against the drawer but neglected to sue the indorser. The drawer proved insolvent, and afterwards the attorney sued the indorser, in whieh suit, by reason of a misnomer of the plaintiff, a judgment of nonsuit was finally rendered against him. Before that time the action against the indorser had become barred by the stat- ute. Suit was instituted against the attorney for negligence, and the question in the case was whether the statute com- menced running when the error was committed in the beginning of the action against the indorser, or from the time when the damage was developed and hecame definite, and it was held that the statute began to run from the time of committing the error by misnomer! So where a note was indorsed by the holders to a bank for collection, and the notary of the bank negligently omitted to charge a prior indorser by giving no- tice of non-payment, and the bank was sued by the indorsers for neglect and compelled to pay damages, it was held, in an action of assumpsit against the notary, that the cause of action arose immediately on the omission, and that the bank, not having sued the notary within six years thereafter, was barred by the statute, although the former suit and recovery thereon, themselves by pleading the statute of limitations. But it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad Jaw. Upon the special counts of the declaration, the cause of action disclosed is the refusal to deliver the resi- due of the salt purchased and paid for. When did this accrue? From that point of time the statnte of limitations began to run, and when it once began to run nothing could stop it; so that, in six years thereafter, the right of suit was barred. The rule is firmly established that in assumpsit the breach of contract is the cause of action, and that the statute runs from the time of the breach, even where there is fraud on the part of the defendant. That is laid down in Battley v. Faulkner, 3 B. & Ald. 288 ; Short v. Macarthy, id. 626; and Brown v. Howard, 2 Brod. & B. 78, When the plaintiff tried to obtain the 10,000 maunds of salt, and he was told by the agents of the company that there was no salt in the golahs to deliver to him, the contract was undoubtedly broken, and. the cause of action had accrued.”” East India Company». Paul, 14 Jur. 233. 1 Wilcox v. Plummer, 4 Peters, 172. This case was followed in Ala- bama. Mardis v. Shackleford, 4 Ala. 495. But see § 209, note, ante. SEC. I.] TORTS QUASI EX CONTRACTU. 293 and payment of damages by the bank to the holders, were all within the six years.1 § 212. Rule of Damages. —It is generally true that if an action be commenced as soon as the defendant becomes charged with negligence or unskilfulness, no more than nom- inal damages may be proved and recovered ; but, on the other hand, it is settled that the proof of actual damage may ex- tend to facts that occur and grow out of the injury, up to the day of the rendering of the verdict.2, Thus in an action on a bond given for the liberty of the jail yard, in which there was proof of two breaches of the bond at different periods, it was held that, under the act by which such actions were limited to one year, the limitation commenced running at the time of the first breach; the amount recoverable therefor being the same as for both breaches.3 § 218. When Cause of Action Accrues.— There is some- times difficulty in fixing the precise time when the tortious act which is made the foundation of the action was com- mitted.* Where a captain of an insured ship carried her out of the course of her voyage, procured her to be condemned in 1 Bank of Utica v. Childs, 6 Cowen, 238; and see Morgan v. Plumb, 9 Wend. 287; The Governor v. Gordon, 15 Ala. 495. 2 Wilcox v. Plummer, 4 Peters, 172; and see Sheriff of Norwich v. Bradshaw, 1 Cro. Eliz. 53. 8 Brown v. Houdelette, 10 Me. 399. But in Austin v. Moore, 7 Met. 116, it was held that where, more than twenty years after the making of the bond, a sheriff brought an action against his deputy on his . bond, among other things, to account once in six months, and alleged that the deputy had rendered no account since his appointment, it was held that, although there was a breach of the condition of the bond more than twenty years before action brought, yet the sheriff was entitled to recover for all breaches within twenty years. The decision in this case rested upon the ground that the bond was a continuing security, and that each successive failure to comply with the condition was a new breach and a new cause of action. The same principle was applied in Wood v. Willis, 110 Mass. 454, and see Amott ». Holden, 16 Eng. L. & E. 142. 4 For the rule as applied to breaches of condition in a bond, see ‘Austin v. Moore, 7 Met. 116, and other cases cited in note to § 212 ante. 294 ACTIONS OF TORT. [cHap. v. a Vice Admiralty court, sold her, and delivered her up to the purchaser, and the loss was laid in the declaration to have been by the barratry of the master, it was held that the lim- itation began to run only from the last act of barratry, as between the assured and the underwriter.! In an action against directors of a bank, founded on the equity of the statute incor- porating the bank, for mismanagement of the affairs thercof, it was held that the action was barred after the lapse of six years from the time when the bank became publicly insolvent. It was further held that although the act of limitations is not applicable to actions against the corporation on its notes, as such notes are never paid unless given up by the holder at the time of the payment, yet where the action is brought against the directors, and is founded on their imputed mal- feasance or non-feasance, there is no distinction in the application of the limitation between such a case and any other.” § 214. Actions against Sheriffs. — There are numerous decis- ions as to the application of the rule in actions against sheriffs for official neglect or malfeasance. Where a sheriff was sued for an insufficient return upon an original writ, by rea- son of which the judgment rendered in the action was re- versed, it was held that the statute began to run from the time of making the return, and not from the date of the reversal of the judgment. It was considered that the plain- tiff was to be presumed to have seen the defect in the return when this was filed, and that he should have then procured its amendment.’ So in an action against an officer for taking insufficient bail, the plaintiff contended that the right of action against the officer did not commence until the insufficiency of the bail was ascertained by the execution issued on the scire facias being returned unsatisfied, but the court held that the plaintiff might have commenced his action against 1 Hibbert v. Martin, 1 Camp. 539. 2 Hinsdale v. Larned, 16 Mass. 64, and see Baker v. Atlas Bank, 9 , Met. 182. 8 Miller v, Adams, 16 Mass. 456. See Fisher v. Pond, 1 Hill (N. Y.), 672. SEC. 1.] TORTS QUASI EX CONTRACTU. 295 the defendant immediately after the return of non est inventus upon the execution against the principal debtor; and, as more than six years had elapsed between that time and action brought, the action was barred! An action against a sheriff for an escape must be brought within six years from the time of the escape.2 Where an officer collects money on an execution and returns the execution as satis- fied, but does not pay over the money to the plaintiff, it is held that the responsibility of his surety is fixed by the time of the return, and that the statute then begins to run in his favor. So where he has received money on a scire facias, the statute runs in his favor from the time when it was received. But in Massachusetts and Louisiana, it was held, in an action against the sheriff for money collected by him on an execution which he had returned satisfied, that the statute did not begin to run against the plaintiff until demand made, as till then he had no cause of actions Where a sheriff has taken insufficient sureties in replevin, the statute begins to run from the time when the plaintiff fails to return the property replevied on demand after judgment therefor.® The right of action of an attorney against a sheriff for taking insufficient bail accrues when the attorney’s lien for his costs is perfected by the rendition of judgment;7 and so where the sheriff wrongfully releases attached property.’ It has been held that where a sheriff, contrary to his instructions, neglects to attach sufficient property shown to him, a cause of action arises against him on the return of the writ, and that the statute then begins to run, and not from the time _ when, by a levy. of the execution, the insufficiency of the 1 Mather v. Green, 17 Mass. 60. 2 Cockram v. Welby, 2 Mod. 212. See French v. O’Neale, 2 H. & McHen. (Md.) 401; West v. Rice, 9 Met. 564, 8 Governor v. Stonum, 11 Ala. 679. 4 Thompson v. Central Bank of Georgia, 9 Ga. 413; and see Edwards v. Ingraham, 81 Miss. 272. ‘8 Weston v. Ames, 10 Met. 244; Pitkin v. Rousseau, 14 La, Ann. 511. 6 Harriman v. Wilkins, 20 Me. 93. ‘ 7 Newbert v. Cunningham, 50 Me. 281. 8 Lesem v. Neal, 53 Mo. 412. 296 ACTIONS OF TORT. [cHapP. V. property is ascertained. But this doctrine has been con- troverted in Connecticut, upon strong, and it would seem, reasonable grounds.” SECTION II. TORTS, GENERALLY. § 215. Limitation runs from Accruing of Damage. —It has already been stated that the action of assumpsit will lie for torts quasi ex contractu, that is, those involving the defend- ant’s malfeasance, misfeasance, or nonfeasance.2 And the general rule in such cases is that the time of limitation will begin to run from the time of the breach of duty, and not from the time when the damage resulting therefrom ac- tually accrues. But if the cause of action, whether this be assumpsit or case, be not the doing of the act but the resulting damage therefrom; then the statute will run from the hap- pening of the damage.® Thus, in an action on the case for damages against a railroad company for unreasonable delay in transporting merchandise, the fault having occurred in part prior and in part subsequent to the beginning of the period of limitation, it was held that the damage caused by the delay which occurred more than six years before the date of the writ was barred, but that the damage occurring within six years was recoverable. It is said that the use of the action of assumpsit in such cases is modern, and that an 1 Betts v. Norris, 21 Me. 314; Garlin v. Strickland, 27 id. 448. 2 Bank of Hartford County v. Waterman, 26 Conn. 284, Ellsworth, J., dissenting. In this case the subject will be found elaborately discussed. 8 See § 138, ante. * See § 209, ante. Where goods were attached by a deputy sheriff on mesne process, the officer was held not liable to the suit of the debtor while the lien created by the attachment continued, although he did not keep the property safely; and the statute period of limitation within which the debtor might bring suit against the sheriff for the neglect of the deputy in suffering the goods to be destroyed, began to run from the time the attachment was dissolved. Bailey v. Hall, 16 Me. 408; and see cases cited with § 213, anie. 5 Whitehouse v. Fellowes, 9 C. B. (nN. 8.) 901; 10 id. ‘765. 6 Jones v. Grand Trunk Railway Co., 74 Me. 356. SEC. II.] TORTS, GENERALLY. 297 ‘action of tort for misfeasance, in the nature of an action on the case, may be supported without an existing contract be- tween the parties! The distinction thus indicated may be of importance when it is considered that where the tort is the result of a breach of contract, the limitation which applies to actions of contract, and not that which applies to actions of tort, controls.? 1 Bretherton v. Wood, 3 Brod. & B. 4. This was an action on the case against the proprietors of a stage-coach, to recover damages for an injury sustained by a passenger in consequence of the defendant’s coachman having upset the coach on which he was riding, the declaration alleging breach of duty by the negligence of the defendant’s servants. The court held that the action was not to be considered as founded on contract or as being quasi ex contractu, nor was it necessary to prove any contract in order to sustain it. Dallas, C. J., said: “On the part of the plaintiffs in error it was contended that the statement of the case in the declaration amounts to a contract, and that being so, all the rules which relate to actions founded on contracts must govern, and that it is a rule of law that such actions are joint, and must be maintained against all the defend- ants named in the declaration, or fail altogether. If it were true that the present action were founded on contract, so that to support it, a contract between the parties to it must have been proved, the objection would de- serve consideration. But we are of opinion that this action is not so founded, and that on the trial it could not have been necessary to show that there was any contract, and therefore the objection fails. The action is on the case against a common carrier, upon whom a duty is imposed by the custom of the realm, or, in other words, by the common law, to carry and convey their goods and passengers safely and securely, so that by their negligence or default no injury or damage happen. A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it.’’ 2 Howard v. Ritchie, 9 Kan. 102. It is provided by statute in Massa- chusetts that when it is deemed doubtful to which class a particular cause of action belongs, a count in contract may be joined with a count in tort, averring that both are for one and the same cause of action. Pub. Sts. ce. 167, § 2, cl. 5. The words ‘‘an action for injury to the rights of another not arising on contract,’’ in subd. 3, § 18, Civil Code of Kan- sas, qualify the provision in subd. 2, jot the same section, giving three years in which to begin an action ‘ upon a liability created by statute,’’ and therefore the two years’ limitation named in subd. 3, applies to actions brought under a statute by a railroad employee to recover damages from the railroad corporation for personal injuries. Atchison, Topeka, & Santa Fé Railroad Co. v. King, 81 Kan. 708. 298 ACTIONS OF TORT. [cHaP. v. § 216. Iustrations of the Rule.—In accordance with the rule stated, it is held that aright of action to recover for permanent injuries to land, resulting from the negligent con- struction of a railroad over the land, accrues when the injury is first sustained, and not, necessarily, from the date of the construction of the road.! In an English case, where the ‘injury sued for consisted in the removal by the defendant of pillars of coal forming the support of the plaintiff's soil, which, in consequence of the removal, finally fell in, it was held that the cause of action accrued, and so that the limita- tion began to run against the plaintiff, at the time when the soil actually gave way.2 So where a turnpike company neg- ligently maintained in its road improper catch-pits for water, which overflowed therefrom, from time to time, to the injury of the plaintiff's land, it was held that an action would lie for each overflow, and that the limitation would run on each cause of action from the time when it arose.2 Where water was taken by a town under a water act, it was held that the limitation began to run when the water was in fact taken and diverted, not from the time when the town voted to “take and condemn” itt In the case of a claim for damages for maliciously prosecuting the levy of an attachment the limita- tion runs from the time of the levy It is held that when a demand is a necessary pre-requisite to an action, as in an action against a municipal corporation for suffering snow and ice negligently to remain in its streets, whereby the plaintiff 1 Van Orsdol v. The B. C. R. & N. RB. Co., 56 Towa, 470; and see Powers v. Council Bluffs, 45 id. 652. A railroad built its road-bed so as to obstruct the flow of water from an upper proprietor, but abandoned the location, and the road-bed was cut through so as to allow the water to flow as before. Afterwards it built another road-bed ‘obstructing the flow, for which obstruction suit was brought. It was held that the lim- itation was to be reckoned from the completion of the latter and not of the former obstruction. Little Rock & Fort Smith Railway Co. v. Chap- man, 29 Ark. 468. See Krueger v. Grand Rapids & Indiana R. R. Co., 51 Mich. 142. 2 Backhouse v. Bomini, 9 H. of L. Cas. 503. 8 Whitehouse v. Fellowes, 10 C. B., n. 8. 765. 4 Goff v. Pawtucket, 138 R. I. 471. See Davis v. New Bedford, 183 Mass. 549; Tileston v. Brookline, 184 id. 488. 5 Sharp v. Miller, 57 Cal. 481; Wood v. Curry, 57 id. 208. SEC. II. ] TORTS, GENERALLY. 299 was injured, the limitation is to be computed from the time when the right to make the demand is complete.! § 217. Actions for Injuries to Land. — Actions ‘for the ob- . struction of ways and watercourses, and the diversion of the latter, must be brought within the time limited for the right of entry upon land after such obstruction or diversion ; and the right of action is not necessarily postponed until it can be shown that actual damage has resulted therefrom to the plaintiff. And there is no distinction in the application of the statute between trespasses under ground and upon the surface; nor is it material that the cause of action did not become known to the plaintiff within the time limited? That there exists a right in such cases, and that that right has been invaded, is sufficient; and if an action should be delayed until specific damage could be proved, the defendant, by a continued and uninterupted adverse enjoyment, might set up a title in analogy to the time limited for the right of entry upon the land, which could not be successfully opposed. The law, therefore, implies damage in such cases, before any actual damage has resulted.? Kvery continuance of that which was originally a nuisance the law considers a new nuisance, and, therefore, though the party complaining can- not, in an action on the case, recover upon the original cause of action after the expiration of six years, he may recover for its continuance at any time before the right of entry is barred,‘ and recover, not nominal damages merely, but such 1 Dickinson v. City of New York, 92 N. Y. 584. 2 Williams v. Pomeroy Coal Co., 37 Ohio St. 583. 8 Allen v. Ormond, 8 East, 4; Gardner v. Newburgh Trs., 2 Johns. Ch. 162; Bolivar Mfg. Company v. Neponset Mfg. Company, 16 Pick. 241; Crooker v. Bragg, 10 Wend. 260; Pastorius v. Fisher, 1 Rawle, 27; Angell on Watercourses, 166-170. The rule is the same in respect to rights of common. If A, a commoner, infringe the rights of B, another commoner, it is necessary that B should have A’s right ascertained, otherwise the wrongful act of the latter would, in process of time, be- come evidence of an adverse right. Hobson v. Todd, 4 T. R. 71; Pindar v. Wadsworth, 2 East, 154. Where one having a right to use land for a specific purpose perverts it to other uses, the statute runs from the time of the perversion. Rogers v. Stoever, 24 Pa. St. 186. 43 Black. Com. 219; Com. Dig. T. Action on the case for Nuisance; 300 ACTIONS OF TORT. [CHAP. V. actual damage as ‘has accrued at any time within six years. This has been held where the noise and smoke in a city street caused by railway trains constituted a continuing nuisance, and where the defendant’s maintenance of a dam was a con- tinuing injury to the plaintiff, —the court, in the latter case, ° saying that one who continues a nuisance is liable to succes- sive suits, each continuance being a new nuisance.? So it was held that the cutting and asportation of timber were to be considered as two parts of a continuing trespass and that the statute would only run from the completion of ‘the asportation.? (a) Slander and Libel. § 218. Distinctions observed: Slander of Title. — Under the statute of 21 James I., actions on the case for torts other than ‘slander were to be brought within six years from the time when the cause of action accrued. But actions upon the case for words spoken were to be commenced and sued within two years next after the words spoken. This rule, however, only extended to cases where the words were actionable in themselves, and not to cases where words not actionable in themselves became so by reason of special damage arising from the speaking of them.’ Thus slander of title was not within the limitation of two years, because this is not action- able unless special damage has accrued in consequence, as the slandering of title does not in itself import loss, but may occasion injury by preventing the selling or letting of the land.6 Nor did the rule extend to actions for words founded upon indictment, or other matter of record ;® nor to actions for libel.?’ Cases where words not actionable in themselves Staples v. Spring, 10 Mass. 72; Baldwin v. Calkins, 10 Wend. 167; Beidel- man v. Foulk, 5 Watts, 308; Delaware Canal Co. v. Lee, 2 Zab. (N. J.) 248. 1 Werges v. St. Louis Railroad Co., 385 La. Ann. 641. 2 Prentiss v. Wood, 132 Mass. 486; and see Hodges v. Hodges, 5 Met. 205. 8 Sullivan v. Davis, 29 Kan. 28. 4 Browne v. Gibbons, 1 Salk. 206. & Law v. Harwood, Cro. Car. 140, 6 Saunders v. Edwards, 1 Sid. 95; Blanchard on Limitations, 99. 7 Archbold, Pleading, 29; Blanchard, supra. SEC. II.] TORTS, GENERALLY. 301 became so in consequence of special damage occurring from the uttering of them, came under the head of actions on the case, and were, therefore, to be sued within six years from the time when the cause of action was proved to have accrued.! But the distinction in the statute of James I. as to actions on words per se libellous and others has not generally been observed in the American statutes of limitation. Thus, in New York, actions for words spoken slandering the character of any person, and for words whereby special damages are sustained, are alike to be brought within two years.2. And in Massachusetts all actions for slanderous words and for libels must be brought within two years. after the cause of action accrues, and not afterwards.® 1 Where words are actionable in themselves, the time is reckoned from the speaking of the words ; but where the special damage is the gist of the action, it is not sufficient for the defendant to aver in his plea that he did not speak the words within six years, because, though that was the fact, the special damage which is the cause of action may have arisen within six years. It is therefore requisite that he should plead that the cause of action did not accrue within that limitation. See 1 Starkie on Slander, 473, 474. The sixth section of the statute of James provides that ‘‘in all actions upon the case for slanderous words, if the jury, upon the trial of the. issue upon such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shillings, then the plaintiff or plaintiffs in such action shall have and recover so much costs as the damages so given or assessed amount unto, without any further increase of the same.’’ In those cases, therefore, where the jury assess damages under forty shillings, and where the plaintiff rcovers no greater costs than damages, the time of limitation is two years; for the words must have been actionable in themselves. But where full costs are allowed, although the damages be under forty shillings, the action is not within the limita- tion of two years, for in this case the slanderous words could not have been actionable within the meaning of the act, but became actionable only by reason of the special damage, which being the gist of the action, the limitation is six years, which begins to run from the time that the consequential damage accrued. Blanchard, Limitations, 100. 22 Rev. Sts., part 3, ch. 4, tit. 2, § 18. 8 Pub. Sts. ec. 197, § 2. The statute of Mississippi, which provides that every action on the case for words spoken shall be commenced and sued within one year next after the words spoken, and not after, is held to embrace words written as well as spoken. Menter v. Stewart, 2 How. 698. But see, contra, in Illinois, Hazell v. Shelby, 11 Ill. 9. 302 ACTIONS OF TORT. [cHapP. V. § 219. In Slander, unless Statute pleaded, Plaintiffs Proof not Limited. — In actions for slander, if the statute limitation be not set up by the defendant, the plaintiff may give in evidence words spoken more than two years before the commencement of the action. For where there is a pre-existing cause of action, the statute does not extinguish it, but only takes away the remedy ; there being a right or privilege to be asserted by the defendant requiring action on his part, which action can be effectual only by his filing a plea of the statute, or what is equivalent, a notice of it as a special defence under the gen- eral issue.! But where the declaration alleged the words to have been spoken on a particular day within two years, and the plaintiff produced evidence of words spoken more than two years before the commencement of the action, the de- fendant was allowed, without terms, to file the plea of the statute.? (bo) Trover. § 220. Limitation runs from Time of Conversion: Demand. — Under the statute of James I., the action of trover must be brought within six years after the cause of action accrues; and the time when the cause of action is considered to accrue is the time of the conversion.2 For any man may take the goods of another into possession if he find them; but no finder may acquire a property in them, unless the owner be for ever unknown. The finder, therefore, must not convert them to his own use, which he is presumed to do if he refuses to deliver them to the owner. And such refusal is prima 1 Brickett v. Davis, 21 Pick. 404. 2 Td. 3 The statute provides that the action sur trover shall be commenced and sued within the time and limitation after mentioned, to wit, six years. But from the omission of trover in the perclose, it has been con- tended that trover was not within the statute. The court, however, con- sidered that although actions of trover are not mentioned in the perclose, yet the words being that ‘‘ actions upon the case shall be brought within . six years,’’ the action of trover was to be included by implication in these general words. Swayn v. Stephens, Cro. Car. 245. In some of the states different periods of limitation are provided respectively for actions sound- ing in contract, and actions of trover. See Kirkman v. Philips, 7 Heisk. (Tenn.) 222, SEC. II.] TORTS, GENERALLY. 303 facie sufficient evidence of a conversion.! Thus, where an executor had left some household goods in the testator’s house with the consent of the heir, who afterwards used them; and within six years before his action brought, the executor demanded the goods, and the heir refused to give them up, whereupon trover was brought and the statute of limitations pleaded, it was held that the use of the goods before the demand was neither a conversion, nor evidence of it, such use being with the consent of the executor until that time. And the demand being made within six years, the refusal, which was the only evidence of a conversion in the case, was to be taken to be within the six years. The court observed that if a trover be before the six years, and a con- version after, the statute cannot be pleaded. When the sole property of a wife was allowed by her trustee to remain in the possession of her husband, who disposed of it by a will, the general character of which was known to the trustee, it was held that the statute began to run against the trustee from the time of the possession of the property by the executor under the will.* § 221. For Things Tortiously taken, runs from Time of Tak- ing. — When the defendant’s possession was originally lawful, the statute runs only from the date of demand made therefor, and refusal,> or some act of conversion by the defendant. Thus the right of redemption of a pawn is not affected by the statute of limitations, and runs only from the conversion of the thing pawned.* But where goods are tortiously taken, the statute will run from the taking, for that, in such a case, is the time of the conversion, and the conversion, and not a subsequent tortious sale of the goods, is the time from which 1 Black. Comm. 158. 2 Giles v. Merritt, 59 N. H. 325; Spackman »v. Foster, 31 W. R. 548. 8 Montague v. Sandwich, 7 Mod. 99; and see Compston v. Chandless, 4 Esp. 20; Horsefield v. Cost, Addis. (Penn.) 153; Fishwick v. Sewell, 4 Har. & J. 393. 4 Bryan v. Weems, 29 Ala, 428. 5 Yorian v. McClure, 83 Ind. 310. 8 Slaymaker v. Wilson, 1 Penn. 216; and see Callis v. Tolson, 6 Gill & J. 81. 804 ACTIONS. OF TORT. [cHap. v. the limitation begins to run.!_ Thus, where goods were taken on an execution, which was afterwards set aside for irregu- larity, and an action of trover was brought, to which the defendant pleaded the statute of limitations, it was held that the execution was a nullity, and that the statute began. to run from the first taking of the goods and not from the time when the execution was set aside.2, So an unlawful dis- position of property rightfully in possession being a conver-. sion, the statute will run from such unlawful act. And the statute is a bar to an action of trover commenced more than six years after the conversion, although the plaintiff did not know of the conversion until within that period, the defend- ant not having practised any fraud in order to prevent the plaintiff from obtaining knowledge of the conversion at an earlier period.* § 222. For Chattels Claimed by Adverse Possession. —If a tenant erects buildings on the land leased by: him and permits them to remain in the possession of the owner of the freehold 1 Harpending v. Meyer, 55 Cal. 555, and see Gaty v. Babers, 32 La. Ann. 1091. 2 Read v. Markle, 3 Johns. 516, and see Badlam v. Tucker, 1 Pick. 397; Kelsey v. Griswold, 6 Barb. 436; Thomas v. Greer, 6 Tex. 872; Same v.- ‘Brooks, 6 id. 359. 8 Dench v. Walker, 14 Mass. 499; Melville ». Brown, 15 Mass. 82. Upon the sale of a slave by one who has only a life estate in him, a right: of action accrues to the remainder-man. Coffee v. Wilkerson, 1 Met. (Ky.) 101. Where the defendant, in a replevin suit, paid the damages assessed against him, and the slave, the subject of the replevin suit, after the wrongful taking and during the pendency of the suit was delivered of a child, the right of action for the child accrued at its birth. Houston. v. Bibb, 5 Jones (N. C.), 83. 4 Granger v. George, 5 Barn. & C. 149 ; and see Short v. McCarthy, 3° Barn. & Ald. 626; Brown v. Howard, 2 Brod. & B. 73; Johnson. v. White, 13 Smedes & M. 584; Ward v. Dulaney, 23 Miss. 410; Jordan. v. Thornton, 7 Ga. 517; Smith v. Newby, 13 Mo. 159; Clark ». Marriott, 9 Gill, 331. In an action of trover, an allegation of fraud in the conver- sion, fraudulently concealed by the defendant, and undiscovered by the plaintiff until a time within four years before the commencement of the suit, is not, in South Carolina, a good replication to a plea of the statute of limitations. Clarke v. Reeder, 1 Speers, 898; Simons v. Fox, 12 Rich. 392; Fears v. Sykes, 35 Miss. 633. SEC. 11.] ' TORTS, GENERALLY. 805 for more than six years after the expiration of his term, any right to recover them which he might otherwise have becomes barred by the statute! And, generally, the adverse possession of personal property gives a title upon which the possessor may bring trover against the former owner.? But the rule that obtains in relation to real estate holds good here, namely, that where one has held by the consent of the true owner as bailee or otherwise, there can be no adverse possession until there is a denial of the right of the legal owner.? There must be some positive action in relation to the property, indicating an adverse claim,‘ and the intention of the possessor to claim adversely, and the knowledge of that intention on the part of the owner, must coincide, in order to give title to personal property by adverse possession.6 The presumption is that the possessor is also the owner, and it is for the real owner to allege and prove that such is not the fact.6 But, in an action of trover, the possession of one who claimed adversely to the true owner and sold to the defendant, cannot be tacked to the possession of the defendant so as to make up the time of the statutory limitation.’ A mere life-estate in a chattel cannot be created by the operation of the statute of limitations against the acknowledged owner of the reversion from whom the possession was obtained. The distinction, as existing in 1 Preston v. Briggs, 16 Vt. 124. A parol loan of a slave, though for life, was held to be so changed in character by the subsequent coverture of the borrower that the notorious possession of the husband would be adverse to the lender. MHallum v. Yourie, 1 Sneed (Tenn.), 360. 2 Cockfield v. Hudson, 1 Brev. (S. C.) 811; Winburn v. Cochran, 9 Tex. 123; Bohannon v. Chapman, 17 Ala. 696; Howell v. Hair, 15 id. 194; Vandever v. Vandever, 3 Met. (Ky.) 187; Devine v. Bullock, 8 id. 418; Clarke v. Slaughter, 34 Miss. 65; Ewell v. Tedwell, 20 Ark. 186; Me- Arthur v. Carrie, 32 Ala. 75; Mercein v. Burton, 17 Tex. 206. ® Lucas v. Daniels, 34 Ala. 138; Hall v. Dickey, 32 Miss. 208. 4 Baker v. Chase, 55 N. H. 61. 5 Lawson v. Cunningham, 21 Ga. 454. 8 Smith v. Reid, 6 Jones, Law (N. C.), 494. 7 Beadle v. Hunter, 3 Strobh. 331; Moffatt v. Buchanan, 11 Humph. (Tenn.) 369; Wells v. Ragland, 1 Swan (Tenn.), 501; Hobbs v. Ballard, 5 Sneed, 395. 8 Turner v. Turner, 2 Sneed, 27. But see Burns v. Ray, 18 B. Mon. 892; Crabtree v. McDaniel, 17 Ark. 222, and § 270, post. 20 306 ACTIONS OF TORT. [cHaP. Vv. theory, between the operation of the statute of limitations when applied to property adversely held, and as applied to contracts for the payment of money, is said to be this; in the one case it acts on the title, and when the bar is perfect transfers it to the adverse possessor, while in the other there is no such thing as an adverse possession, but the statute simply affects the remedy and not the debt.! (c) Replevin. § 223. Limitation runs from the Taking. — The action of replevin must be commenced within the time prescribed by the statute after the cause of action has accrued, that is, after the taking unlawful possession of the goods by the de- fendant. But the time of limitation does not run, as against the owner, while the goods are held by another person, with the owner’s permission.2 Where property replevied was loaned to the defendant by the plaintiff, and held and used by him under and by virtue of such loan for a period longer than the time limited, before suit brought, it was held that such pos- session did not sustain the plea of the statute in an action of replevin, — the plaintiff having no knowledge of any adverse claim of the defendant. In replevin, as in trover,! the statute begins to run only from the date of demand when the property claimed is in the possession of a purchaser for value without notice.® (d) Detinue. § 224. Limitation runs from Demand and Refusal. — The action of detinue, which lies for the detention of goods that came to the defendant’s possession by delivery or finding,® 1 Jones v. Jones, 18 Ala. 248. See § 4, ante. 2 Ward v. Reeder, 2 Har. & McHen. 145. 8 Callis v. Tolson, 6 Gill & J. 81. But if the property is sold upon an agreement to pay the price in instalments, the property to remain the vendor’s till paid for, the vendee, after six years’ possession, reckoned from the time when the last instalment was due, may plead the statute. Barton v. Dickens, 48 Pa. St. 518. 4 See § 220, ante. 5 Yorian v. McClure, 83 Ind. 310. 6 3 Black. Com. 152. SEC. II. ] TORTS, GENERALLY. 307 and which, by the statute of James, must be brought within six years, though in some cases a proper remedy, has now fallen nearly into disuse.!. In detinue for title-deeds, the stat- ute does not begin to run until the title to the property has been adjudged to belong to the real owner, as until then the possession is not to be deemed adverse to such owner.2, Where goods have been bailed for safe custody, and the bailee wrong- fully sells them, and the owner, not knowing of the sale for more than six years thereafter, makes demand for the goods and is refused, an action of detinue will lie. The statute runs from the date of the demand and refusal, and not from the sale, since the plaintiffs, in such a case, though entitled, if they had discovered the sale, to sue immediately for the con- version, were also entitled to elect to sue upon the breach of the bailee’s duty by the refusal to deliver on demand. It seems that, where the action of detinue is founded upon the bare taking and withholding the property of another without circumstances to show a trust, or upon which to found an action either for the wrong or for a breach of the contract, the statute will run from the date of the wrongful act.® (e) Trespass. § 225. Quare Clausum: Injury to the Person.— The stat- ute of limitations may be pleaded to an action of trespass, quare clausum fregit, for mesne profits, and the defendant - thus protect himself from liability for all trespasses except those committed within the time limited for the commence- ment of the action. Under the statute of James, trespass quare clausum was to be brought within six years, and tres- pass to persons within four years, from the time of the trespass. When the trespass to the person has been continued many years, as in the case of false imprisonment, and the statute is 1 Selwyn, N. P. 667, and see § 9, ante, note. The old writ of de ra- tionabili parte bonorum, although concluding in the detinet, was held not to be within the statute of James, on the ground that it was an original writ and different from the common action of detinue. Arch. Plead. 29. 2 Plant v. Cotterill, 5 Hurl. & N. 480. 8 Wilkinson v. Verity, L. R. 6 C. P. 206. 4 Runnington on’Ejectment, 444; Hill v. Myers, 46 Pa. St. 15. 308 ACTIONS OF TORT. [CHAP. V. pleaded, it has been held that the jury are to give damages only as for the time within the statute.1 But where one who was imprisoned for contempt was subsequently released upon his giving an appeal bond, it was held in his action for false imprisonment that the limitation began to run from the time of the plaintiff’s release and not from the time of his im- prisonment,? and this would appear to be the general rule.’ In malicious prosecution the limitation runs from the time of service of process on the plaintiff. § 226. Criminal Conversation: Seduction: Loss of Service. — Although actions for criminal conversation, and beating or imprisoning wives or servants, per quod consortium, vel servitium, amiserunt, are within the operation of the statute of James I., it has been a question whether the limitation in such cases is six or four years. In an action by the husband for the defendant’s criminal conversation with his. wife, the defendant pleaded not guilty within six years, and the plain- tiff demurred to the plea. The question being whether the action was trespass and assault, to which action the period of limitation. would be four years, or case, which might be brought within six years, the court held that it was an action on the case. Sq in New Hampshire, in a similar action, the same question arose and a like rule was held.6 In another case in the same form, the court seem to have considered the action as an action on the case; but decided that, had the action been, in form, trespass, still a plea of “ not guilty infra sex annos,” not having been specially demurred to, would be good on general demurrer; and it was said that if the defend- ant take the longer period, and plead “ not guilty within six years,” and the plea be not specially demurred to, it will be good either way of considering it, for the greater period in- 1 3 Mod. 111. 2 Van Infer v. Snyder, 24 Hun, 84. : 3 Dusenbury »v. Keiley, 85 N.Y. 83; 61 How. Pr. 408; 8 Daley, 537. See Egginton v. Mayor of Litchfield, 32 Eng. L. & E. 237. 4 Pratt v. Page, 18 Wis. 387. 5 Coke v. Sayer, 2 Wils. 85. 6 Sanborn v. Neilson, 5 N. H. 314. e SEC. II. ] TORTS, GENERALLY. 809 cludes the less.1_ The question thus arising under the statute of James I. is of little importance at the present day, since in most of the states the local statutes of limitation sufficiently set forth the time within which the actions named are to be brought.2 In this class of cases, the limitation ordinarily runs from the time of the occurrence of actual damage. Thus when the plaintiff’s daughter had been seduced, it was held that the cause of action accrued, not at the time of the seduction, but when the loss of the daughter’s services actually occurred.2 So where the daughter at the time of the seduction was living away from home, but returned home and was there delivered of a child, and was nursed, the limitation was held to begin to run from the time of the daughter’s return. So in the case of a parent suing for the loss of services of his child and expenses of its care, the injury being caused by the negligence of another, the gist of the action is not the injury, but the consequences of it, and the limitation is to be computed from the time when such consequences accrued.® 1 Macfadzen v. Olifant, 6 East, 387. Mr. Tidd considered actions for criminal conversation, etc., as actions upon the case in principle, although he has classed them under the head of actions of trespass. His reasons are, first, that the wrongs complained of therein are not direct, but conse- quential; second, that the plaintiff may declare for them by bill with a quod cum, which is not allowed in trespass; third, that in these actions the plea of the statute is, ‘‘ not guilty within six years,’’ and not, as in tres- pass and assault, ‘‘ within four years;’’ and lastly, that although the plaintiff should not recover forty shillings damages, he is, nevertheless, entitled to full costs. Tidd, Pr. 5. It will be found upon examination of the American cases on this subject that no settled form of action is adopted, but that case and trespass have been brought, indifferently. Starkie, Ev. p. 1808, note 1 (Metcalf’s ed.). 2 Thus in Massachusetts, all actions of tort, with certain defined ex- ceptions, are to be brought within six years. Pub. Sts. c. 197, §§ 1, 3. But in New York, as following the statute of 21 James I., actions for criminal conversation are to be brought within six, and for assault within four, years after the cause of action accrues. 2 Rev. Sts. Part III. c. 4, tit. 2, §§ 18, 19. 8 Hancock v. Wilhoite, 1 Duval, 313. 4 Riddle v. McGinnis, 22 W. Va. 253. 5 Waller v. Chicago, 11 Ill. App. 209. 310 ADVERSE POSSESSION. [cHaP. VI. CHAPTER VI. ADVERSE POSSESSION. SECTION I. GENERALLY, INCIDENTS OF. § 227. Claim of Right the Foundation of.—It is a settled principle of the common law that every person is to be deemed in the legal seisin and possession of the land to which he has a perfect title; and his seisin and possession is co-extensive with his right, and continues till he is ousted by an actual possession in another, under a claim of right. The mere fact of possession is only a link in the chain of title by possession, and will not of itself, however long the possession may be continued, bar the right of entry of him who was seised. For possession may not have been taken originally, or subsequently held, with an intention to claim the premises as owner, and may have existed with an understanding between the possessor and the owner out of possession that the latter was to be re- garded as the rightful owner. In other words it may be a permissive possession, which, “however long it may, in point of fact, have endured, could never ripen into a title against anybody ; for it was not considered as the possession of the precarious occupier, but of him upon whose pleasure its con- tinuance depended.”? It is not the possession alone, but the 1 United States v. Arredondo, 6 Peters, 743; Clarke v. Courtney, 5 id. 854; McIver v. Ragan, 2 Wheat. 29; La Frombois v. Jackson, 8 Cowen, 589; Gittens v. Lowry, 15 Ga. 336; Chance v. Branch, 58 Tex. 490; Alex- ander v. Wheeler, 69 Ala. 332. 2 Cholmondeley v. Clinton, 2 Jac. & Walk. 1. Where the possession is such as admits the existence of a higher title to which it is subservi- ent, as where it is conferred by deed or parol license, it is not adverse to that title. Roggencamp v. Converse, 15 Neb. 105; Dean v. Tucker, 58 SEC. 1] GENERALLY, INCIDENTS OF. 811 fact that it is accompanied with the claim of the fee, which by construction of law is deemed prima facie evidence of title. Marshall, C. J., said that the rule had been everywhere rec- ognized that a possession which was permissive and consistent with the title of another should not bar that title, and that it would shock the sense of right which must be felt by all leg- islators and all judges were it otherwise.? So long as the possessor declares ,that he holds in subordination to the better title, his possession will be regarded as being by consent; nor will a continued possession after such declarations avail to mature a title under the statute of limitations until the party has changed the character of his possession, either by express declaration, or by the exercise of acts of ownership inconsis- tent with a less claim. It is said in South Carolina that, “‘where a party claims by the statute, he is required to show at what time he took possession of the land, and how long he has held it; and when a tenant claims to hold adversely, he must show when that intention was made known to the land- lord,” * and the mere fact that the landlord has not demanded Miss. 487. If the owner and claimant are in joint possession, there is no adverse possession. Larwell v. Stevens, 2 McCr. 311. 1 Jackson v. Porter, Paine (C. C.), 457. 2 Kirk v. Smith, 9 Wheat. 288. Where a defendant in ejectment sells the property in dispute pending the proceedings, a possession by the vendee will not justify the plea of the statute of limitations. Walden »v. Bodley, 9 How. 34. But where a defendant in execution remains in pos- session of the land sold, his possession is not necessarily permissive, and he is not estopped from setting up an adverse possession, which, if con- tinued twenty years, will give him a good title. Chalfin v. Malone, 9 B. Mon. 496; and see Batterton v. Chiles, 12 id. 348. 3 Markley v. Amos, 2 Bail. 603; Jackson v. Denison, 4 Wend. 558; Townsend v. Reeves, 44 N. J. Law, 525; Ray v. Barker, 1 B. Mon. 364; Moore v. Moore, 21 Me. 350; Read v. Thompson, 5 Pa. St. 103; Moore v. Johnston, 2 Speers, 288; Dikeman v. Parrish, 6 Pa. St. 210; Hall v. Stevens, 9 Met. 418; Millay v. Millay, 18 Me. 387; Lamb v. Foss, 21 id. 240. See § 248, post. The possession’ of lands by a vendor, after convey- ance, is subordinate and not adverse to the rights of his vendee. Jeffer- sonville, &c., R. R. Co. v. Oyler, 72 Ind. 394, and cases cited. 4 Whaley v. Whaley, 1 Speers, 225; and see Creekmur v. Creek- mur, 75 Va. 480. The rule as between landlord and tenant arises from the application of the presumption that that relation, once subsisting, continues. 312 ADVERSE POSSESSION. [cHapP. VI. nor the occupant paid rent is not sufficient to bar the land- lord’s title! Generally, however, the party holding the supe- rior title cannot set up his own ignorance of the adverse holder’s claim of right, to defeat the limitation? § 228. Under the English Statute.— The question whether a real or possessory action can be maintained in any case depends upon whether or not there has been an adverse pos- session on the part of the defendant or those in privity with him during the period of limitation, and if there has been such a possession the demandant cannot recover. Under the stat- ute 21 James I. c. 16, it was held that mere non-payment of rent did not alone render the possession adverse, and also that there could be no adverse possession where the party in pos- session held the estate by the permission of the real owner, or under an implied tenancy, or where the possession was con- sistent with that of the party entitled, the statute in this par- ticular not modifying the common-law definition of adverse possession, But itis held that the Act of 3 and 4 Wm. IV. c. 27, §§ 2,3, renders any possession adverse, when the demandant has a present right of possession and is not under disability, unless there be proved either an acknowledgment by the defendant in writing, or the payment of rent by him within the period of limitation. And it is said that the act has done away with the doctrine of non-adverse possession.? 1 Ehrman v. Mayer, 57 Md. 612. 2 Brownson vr. Scanlan, 59 Tex. 222. As to suits to recover possession of chattels personal claimed by adverse possession, see § 222, ante. 8 Per Lord Denman in Nepean v. Knight, 2 Mees. & W.911. See Culley v. Taylerson, 3 Per. & D. 539, and §§ 818, 815, post. In Bennett v. Turner, 7 Mees. & W. 226, 9 id. 618, it was held that a tenancy at will, or sufferance must under the statute be taken to have determined at the end of one year after the commencement of such tenancy, if there was no prior determination thereof; and also that if the jury find that a new tenancy was created, even by parol, at any time within twenty years next before bringing the action, then that the statute runs from such tenancy, and not from the first year after the commencement of the original tenancy. The effect of this latter ruling appears to be to intro- duce, in effect, an acknowledgment by parol as sufficient to prevent the bar of the statute, since a parol agreement for a new tenancy is, in effect, an acknowledgment by parol, which, according to the cases of Nepean v. SEC. I.] GENERALLY, INCIDENTS OF. 318 § 229. Effect of, upon the Legal Title.— The early statutes of limitation of actions to recover land were held not to ex- tinguish or bar the right of the plaintiff or demandant, but merely his remedy. But by the Act 3 and 4 Wm. IV. c. 27, § 34, it was provided that “at the end of the time limited... the right and title to the land shall be extinguished.” Thus arises a distinction, rather technical than practical, in the application of those statutes based upon the Act of 3 and 4 Ww. IV. and those which are substantial re-enactments of the statute of James IJ., since, under the latter statute, the naked right of the demandant has been deemed to remain, although Knight, and Culley v. Taylerson, supra, it was the intention of the statute to abolish. See, apparently to the same effect, Stanway v. Rock, 4 Man. & G. 30. The Act 3 & 4 Wm. IV. c. 27, § 17, provides substantially that no entry, distress, or action shall be brought by any person who, at the time when his right shall have first accrued, shall be under disability, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the term of ten years after the termination of the disability shall have expired. (See App.) Under this provision, where a feme sole, seised in fee, mar- ried, and she and her husband ceased to be in possession or enjoyment of the land, and went to reside at a distance from it, and both died at times which were not shown to be within forty years from their ceasing to oc- cupy; and the wife’s heir at law brought ejectment against the person in possession within twenty years of the husband’s death, and within five years of the enactment of the above statute, but more than forty years after the husband and wife had ceased to occupy, —it was held that the heir at law was barred under § 17, though it did not appear when the defendant came into possession, or whether or not his possession was originally rightful. Lord Denman said: ‘‘ The fact being clear that within the terms of 3 and 4 Wm. IV. c. 27, § 3, the plaintiff's mother was dispossessed, or discontinued the possession, or receipt of the rents, above forty years before the action brought, the action ‘is clearly barred by § 17 of the same statute. Some argument was raised on the question whether the possession was adverse or not; but the terms of that clause are une- quivocal, and one of its objects was to avoid the necessity of inquiring into facts of so ancient a date.’? Corbyn v. Bramston, 3 Ad. & El. 63, The mere fact that land taken by a railway company is required for its purposes, and is not ‘‘ superfluous’? under Act 8 Vict. c. 18, § 127, does not prevent an occupant of it, who has held an exclusive possession of it for twelve years, from being entitled to it under the statutes 3 and 4 Wm. IV. c. 27, § 7, and 37 and 38 Vict. c. 57, § 1. Bobbett v. South Eastern Railway Co., 9 Q. B. D. 424. 314 ADVERSE POSSESSION. [cHAP. VI. the means of enforcing it were lost.1 But it is apprehended, in the United States at least, whatever the form of the local statute, that the courts hold that, in effect, the defendant’s adverse possession of land during the statutory period of limitation will be evidence of a fee.2 Thus it is held that an adverse possession, actually existing, may be set up against ‘any title whatsoever, and to prove title under the statute of limitations,? and that, in the absence of rebutting evidence, 1 It is worthy of uote that the colonial statute of possessions of Rhode Island (1 Pub. Sts. R. I. c. 175, § 2), differing essentially from the stat- ute of 21 James I. c. 16, which operated merely as a limitation on the right of entry or action, transferred the title or estate itself, proprio vigore, whenever the conditions under which it took effect had been completely fulfilled. See Union Savings Bank v Taber, 13 R. I. 683. This enact- ment preceded by more than a century the similar enactment in the stat. 3&4 Wm. IV. c. 27. 2 Potts v. Gilbert, 8 Wash. (C. C.) 475; Somerville v. Hamilton, 4 Wheat. 230; Barclay v. Howell, 6 Peters, 498; Leffingwell v. Warren, 2 Black, 599; Croxall v. Shererd, 5 Wail. 268, 289; Dickerson v. Colgrove, 100 U. S. 578, 583; Bicknell v. Comstock, 113 U. S. 149, 152; and see Campbell v. Holt, 115 U. S. 620, § 4, and note, ante, where the same rule was stated as to adverse possession of personal property. So itis said that whether or not the occupant is technically invested with the legal title, his right becomes as complete as if he were invested with a title by deed. Hale v. Gladfelder, 52 Ill. 91; and see Hopkins v. Calloway, 7 Coldw. (Tenn.) 87; Sherman v. Kane, 86 N. Y. 57; Sims v. Frankfort, 79 Ind. 446; Brown v. Anderson, 90 id. 98. In Mississippi, ten years’ adverse possession gives title under the statute (Code 1880, § 2668), but even without such provision it is held that the adverse possession will support ejectment against the true owner. Jones v. Brandon, 59 Miss. 585. It seems that in controversies between states, relating to boundaries, the statutes of limitation will not be applied so strictly, nor will a title by prescription be so readily acquired. Rhode Island v. Massachusetts, 15 Peters, 223; s. c. 4 How. 591. 8 Bradstreet v. Huntington, 5 Peters, 402; Jackson v. Dieffendorf, 3 Johns. 267; Leffingwell v. Warren, 2 Black (U S.), 599. An alien in- capable of holding land may avail himself of this defence. Overing v. Russell, 82 Barb. 263; see also Heinneccius, p. 6, § 208; Gro. L. 2, ¢. 4, p. 86; Run. on Eject. 59; Stokes v. Berry, Salk. 221. So, in the absence of a saving clause in the statute, adverse possession will run as against an alien. The fact that a complainant prosecuting a suit to enforce her dower right is an Indian woman, and a member of an Indian tribe, does not prevent the statute from operating to bar her right of dower. Ash- Kum v. Sorin, 10 Biss. (C. C.) 293, and see Elwood v. Flanigan, 104 SEC. I.] GENERALLY, INCIDENTS OF. 815 an undisturbed possession during the period fixed by the statute is evidence of an estate in fee upon which a plaintiff may maintain ejectment ;1 and one may become seised, as against all but the true owner, by acts which do not amount to a disseisin of the latter,?for the actual possession of land is evidence of title against a stranger having no title. The ad- verse possession in such cases supposes an acquiescence in all persons claiming an adverse interest; and upon this acqui- escence is founded the presumption of some existing reason for which the claim of an adverse interest was forborne. The legal presumption, as well as considerations of public policy, requires that the evidence of title thus arising should be very strong, if not conclusive Under peculiar circumstances a grant has been presumed from a possession for less than the number of years required to bar an action of ejectment.® § 230. Absolute Bar to Remedy created by.—It is be- lieved that whenever a private person knows that another claims, and is in the actual enjoyment of, land which belongs to him, and neglects to prosecute his right at law during the U.S. 562. In a thickly settled country, after possession for the time limited by the statute, partly by a church and partly by a burying-ground, it has been held that a grant of the land will be presumed by a pre- emption right. Mather v. Trinity Church Ministers, 3 Serg. & R. 509. 1 Denn v. Barnard, Cowp. 597, per Lord Mansfield. See also Catteris v. Cowper, 4 Taunt. 547; Jackson v. Rightmyre, 16 Johns. 314; Jackson v. Wheat, 18 id. 40; Jackson v. Newton, 18 id. 355; Fanning v. Wilcox, 3 Day, 258; Shearman v. Irvine, 4 Cranch, 867; Somerville v. Hamilton, 4 Wheat. 230; McRaa v. Smith, 2 Bay (S.C.), 8839; Munshower v. Patten, 128. & R. 334; Denn v. White, 1 Coxe (N. J.), 94; Jackson v. Davis, 5 Cowen, 130; Pederick v. Searle, 5 S. & R. 240; Smith v. Lorillard, 10 Johns. 357; Jackson v. Dysting, 2 Caines Cas. 198; Cincinnati v. White, 6 Peters, 481; Day v. Alverson, 9 Wend. 223; Devacht v. Newsam, 3 Ohio, 57; Holtzapple v. Phillibaum, 4 Wash. (C. C.) 856. An adverse possession during the period of limitation “arms the adverse holder with all the powers of offence and defence which an unbroken chain of title confers.” Barclay v. Smith, 66 Ala. 230. 2 Slater v. Rawson, 6 Met. 489; Wood v. Banks, 14 N. H. 101. 8 Hubbard v. Little, 9 Cush. 476; Bowley v. Walker, 8 Allen, 21. The same rule is applied to the possession of personal property. Burke v. Savage, 13 Allen, 408. 4 See cases supra. 5 Barclay v. Howell, 6 Peters, 498. 316 ADVERSE POSSESSION. [cHapP. VI. period of limitation, there being nothing to prevent his so doing, he will at the expiration of such period be barred of his remedy by the statute of limitations. Where neither party in an action of ejectment has title, it is clear that the party showing the prior possession is entitled to recover, un- less the last possession has been continued adversely for the time prescribed by the statute of limitations.? In such cases, the prior possession must be such as will enable the person holding it to maintain trespass against the subsequent posses- sor. And the possession under claim of right need not be for so long as to give title by adverse possession, in order to make a prima facie case against a third person who makes entry without any lawful claim, and having no other evidence of titlet But the mere deed of the claimant in possession cannot convey a title until the period of limitation has elapsed. § 231. Title by, good against an Ejectment. — Thus where land has been held under a claim to the fee, during the period of limitation prescribed by the statute, and an entry is after- wards made upon the land by the party having the written title, such party so entering may be dispossessed by an eject- ment brought in behalf of him who has so held and claimed ;§ and where a defendant in ejectment, having been thirty-eight years in undisturbed possession, suffered judgment by default and was turned out of possession, he, notwithstanding, was held entitled to recover the premises on the ground of his previous possession.? So the possession under claim of right 1 Per Harper, C., in Drayton v Marshall, 1 Rice Eq. 373; Armstrong v. Risteau, 5 Md. 256. 2 Jackson v. Hubble, 1 Cowen, 613; Cincinnati v. White, 6 Peters, 431; Jackson v. Porter, Paine (C. C.), 457; Den v. McCann, 2 Penn. 438; Den v. Alpangh, 2 id. 446. 8 Sowder v. McMillan, 4 Dana, 456. 4 Smith v. Lorillard, 10 Johns. 338. 5 Ellen v. Ellen, 16 S. C. 182. 6 Cincinnati v. White, 6 Peters, 431; Jackson v. Porter, Paine (C. C.), 457; Devatch v. Newsam, 3 Ohio, 57; Jackson v. Olitz, 8 Wend. 558; Day v. Alverson, 9 id. 223; Jackson v. Rightmyre, 16 Johns. 314; Gibson v. Bailey, 9 N. H. 168, 7 Jackson v. Dieffendorf, 3 Johns. 269, SEC. I.] GENERALLY, INCIDENTS OF. 317 may be set up not only against any title whatsoever, so as to make out a title under the statute of limitations, but to show the nullity of a conveyance executed by one out of possession.! Where a plaintiff in ejectment produced a patent to a tract of land which had been granted within twenty years, and the defendant proved an outstanding older patent in another per- son, which was barred by twenty years’ possession of the defendant, it was held that the plaintiff could not recover? Indeed, it is not always necessary for the party claiming by adverse possession to show a possession for the whole time prescribed by the statute, for a prior possession for a less period under a claim of right will raise a presumption of title if it appear that such prior possession of the plaintiff was not voluntarily relinquished.? 4 1 Bradstreet v. Huntington, 5 Peters, 402; and see Sicard v. Davis, 6 id. 124. Adverse possession may be gained against land claimed as a homestead. Simonton v. Mayblum, 59 Tex. 7. As to the effect of con- tinuous occupation of alleys and streets, see Corwin v. Corwin, 24 Hun, 147; Dewurth v. Amweg, 90 Pa. St. 180. The lien of a judgment is not a title to land against which the statute of limitations runs, it being a mere security. Kempar v. Adams, 5 McLean (C. C.), 507. 2 Chiles v. Calk, 1 A. K. Marsh. 582. A had patents for two tracts of land adjoining each other, dated in 1784, and in 1790 he entered upon one tract and enclosed part of it and retained possession to the time of the action. B claimed under two entries, made in 1780 and 1783, for the purpose of taking possession in view of a future survey. B took posses- sion in 1839, and brought an action of ejectment against A. It was held that B’s right of entry and action was barred by the statute of limitations, and that A’s title was good. Rogers v. Moore, 9 B. Mon. 401. 3 Jackson v. Rightmyre, 16 Johns. 314; Smith v. Lorillard, 10 id. 338; Den ». Morris, 2 Halst. 6. Since an adverse possession, continued during the time limited by the statute, confers a right, the publicity and notoriety of such possession are sufficient to put a purchaser upon inquiry, and amounts to constructive notice. Bradstreet v. Huntington, 5 Peters, 402. Thus acts of ownership exercised, as fencing land, or erecting buildings upon it, are constructive notice to all the world. See Poignard v. Smith, 6 Pick. 172. And it has been held that a parol acknowledgment of the adverse possession by the person in possession will not prevent the opera- tion of the statute unless such acknowledgment shows that he intends to hold no longer under a claim of right; and declarations made merely with a view to compromise a dispute are not sufficiert to defeat the statute. Sailor v. Hertzog, 4 Whart. 259. 318 ADVERSE POSSESSION. (CHAP. VI. § 232. Like Rules applied in Equity. — The principles stated are adopted and applied by the courts of equity; the rule being that the owner of an equitable estate, not being under disability nor the victim of fraud, will be barred of equitable relief as against a possession clearly adverse, if he fail to pursue his remedy within the period of limitation, in all cases where, had his estate been a legal estate, he would have been barred of his remedy in a court of law.1_ When the statute of limitations is held directly applicable to proceedings in equity, the presumption of a grant is not in general resorted to in order to determine the case; but if the circumstances are very cogent, it is held that a grant may be presumed within a time less than the statute period of limitation” Ina case involving the right to a ferry it was held that the complainants had so long slept upon their rights that the court could do nothing; and this was so whether the complainants in fact knew of the adverse possession or whether, through negligence and a fail- ure to look after their interests, they had permitted the title of another to grow into maturity? § 233. Whether Disseisin in any Case, a Question of Fact. —In all cases the question whether tlie possession of the occupant as against the holder of the record-title was, in the beginning, with intent to assert a right, and so adverse, is to be determined as a question of fact by the jury upon consider- ation of the circumstances of the case and proper instructions by the court. And the jury are in like manner to determine whether the possession alleged to be adverse was with the knowledge of the lawful owner or accompanied by such inci- dents that the lawful owner must be presumed to have knowl- edge of it. In other words, “ disseisin is a fact to be found 1 Elmendorf v. Taylor, 10 Wheat. 152; Cholmondeley v. Clinton, 2 Jac. & W.1; and see Hawley v. Cramer, 4 Cowen, 717; Briscoe v. Prewet, 4 Bibb (Ky.), 878; §§ 18-23, ante. 2 Ricard v. Williams, 7 Wheat. 59. And see Piatt v. Vattier, 9 Peters, 405. But in Dugan »v. Gittings, 3 Gill (Md.), 188, it was held that a claim to real property would not be barred by a lapse of time short of that which would bar an action of ejectment at law. 8 Bowman v. Wathen, 1 How. 189. 4 Bradstreet v. Huntington, 5 Peters, 402; La Frombois »v. Jackson, SEC, I.] GENERALLY, INCIDENTS OF, 319 by a jury.”? These principles are supported by a great weight of authority.2. The same rules apply in equity upon issues being framed for a jury involving questions of adverse posses- sion.2 In all such cases the jury have to consider that, to 8 Cowen, 589. Presumptions are of two classes: natural, and legal, or artificial. The natural presumption is where a fact is proved wherefrom, by reason of the connection founded on experience, the existence of an- other fact is directly inferred. The legal or artificial presumption is where the existence of the one fact is not direct evidence of the other, but the one fact existing and being proved, the law raises an artificial presumption of the existence of the other. Per Ewing, C. J., in Gulick v. Loder, 1 J. S. Green (N. J.), 68. 1 Taylor v. Horde, 1 Burr. 60; Hall v. Dewey, 10 Vt. 598; Pray v. Pierce, 7 Mass. 881. It has been held that the finding of the jury that the occupant has held quiet possession of the demanded premises for more than twenty years cannot, by legal intendment, be considered as establishing the alleged fact of disseisin. Pejepscot Proprietors v. Nichols, 10 Me. 256. But in Conyers v. Kenan, 4 Ga. 308, it is doubted whether every possession of the land of another is not prima facie adverse. / 2 See Gayetty v. Bethune, 14 Mass. 49; Cummings v. Wyman, 10 id. 468; Pray v. Pierce, 7 id. 883; Kennebeck Proprietors v. Springer, 4 id. 416; Boston Mill Corporation v. Bulfinch, 6 id. 229; Brown ». Porter, 10 id. 93; Warren v. Childs, 11 id. 222; Coburn v. Ellis, 3 Met. 125; McClung v. Ross, 5 Wheat. 124; Jackson v. Porter, 1 Paine (C. C.), 466; Brandt v. Ogden, 1 Johns. 156; Jackson v. Schoonmaker, 4 id. 390; Jackson v. Joy, 9 id. 102; Jackson v. Sharp, id. 163; Smith v. Burtis, 9 id. 174; Jackson v. Stephens, 18 id. 495; Jackson v. Waters, 12 id. 365; Jackson v, Ellis, 18 id. 118; Jackson v. Thomas, 16 id. 293; Jackson v. Wheat, 18 id. 40; Jackson v. Newton, 18 id. 355; Seymour ». Delancy, 1 Hop. Ch. 449; Schwartz v. Kuhn, 10 Me. 274; Kinsell v. Daggett, 11 id. 809; Atherton v. Johnson, 2 N. H. 34; Stephens v. Dewing, 2 Aik. (Vt.) 112; Malson v. Fry, 1 Watts, 443; Mercer v. Watson, id. 330; Hopkins v. Robinson, 8 id. 205; Bell v. Hurtleg, 4 Watts & S. 32; Wal- lace v. Duffield, 2 Serg. & R. 527; Overfield v. Christie, 7 id. 172; Mun- shower v. Patton, 10 id. 834; Read v. Goodyear, 17 id. 350; Brown »v. M’Kinney, 9 Whart. 567; Jones v. Porter, 8 Penn. 184; Helm v. Howard, 2 Har. & McH. 74; Bolling v. Petersburg, 8 Rand. 563; Bracken v. Mar- tin, 9 Yerg. 55; McNair v. Hunt, 5 Mo. 300; Rogers v. Madden, 2 Bail. (S. C.) 821; Porter v. Dugat, 9 Mart. 92; Iler v. Routh, 3 Miss. 276. 3 Wallace v. Duffield, 2 S. & R. 527. In South Carolina it has been held that where the possession is in fact adverse, the party so holding may set up the statute, although he may have practised deceit to lull the owner of the land into the belief that he did not intend to claim adversely. Strange v. Durham, 1 Brev. (S. C.) 83. And see ch. ix. sect. v. post. 320 ADVERSE POSSESSION. (CHAP. VI. constitute complete possession in contemplation of law, there must have been an act of the body, accompanied by an inten- tion of the mind,—in other words, a corporeal occupation attended with a manifest intent to hold and continue it; and that when the intent clearly was so to hold against the claim of all other persons, the possession was adverse.1_ When the intent is once established as existing it seems that it may be presumed to continue during the period requisite to give title.? § 234. Character of Claimant’s Possession dependent on Circumstances. — So the circumstances of each particular case will determine whether the acts and declarations of the party in possession are to be taken as evidence of his claim of right or as acknowledgments of a paramount title? If one be owner of a tract of land, and at the same time the agent of the owner of an adjoining tract, he cannot avail himself of the statute to support his title to a part of the land of his principal, of which he had taken possession by reason of a mutual mistake as to the line of the boundary; nor can any one claiming under him avail himself of such possession to establish an adverse title But where one entered on land with title, claiming it as his own, and afterwards, before the expiration of the period of limitation, undertook an agency for one holding an elder patent for the same land, and claimed to hold under it without abandoning his own title or possession, it was held that his heir was not estopped 1 See Jackson v. Halstead, 5 Cowen, 219; and opinion of Kent, C. J., in Jackson v. Schoonmaker, 2 Johns. 230; Bailey v. Irley, 2 Nott & McCord (S. C.), 848; King v. Smith, 1 Rice (S. C.), 10. 2 Mackenzie’s Law of Scotland, 111. 8 In Hicks v. Tredericks, 9 Lea, 491, it appears to have been held, as matter of law, that the occupation must have been actual, by fences, in- closures, or buildings, where the land is capable of such possession, and that such acts as cutting timber, grazing cattle, and erecting hog-pens, are illusory and insufficient. But this case is not supported by authority. 4 Comegys v. Carley, 8 Watts, 280. So if a fence is by mistake ex- tended beyond the true line, there can be no adverse possession, there being no intention to claim beyond the true line. St. Louis University v. McCune, 28 Mo. 481; Howard v. Reedy, 29 Ga. 152; Perkins v. Blood, 86 Vt. 273. SEC. I.] GENERALLY, INCIDENTS OF. 821 to set up his own title and right to possession under it. Where parties for mutual convenience, agree upon a line not the true line, and continue -to claim up to the true line, neither party acquires a title, or right of possession, against the other merely by virtue of his user up to the assumed line.? But where the parties have established a line varying from the land described in the deeds, and each party has held and occupied up to his side, claiming to hold by right for twenty years, neither can maintain a possessory action against the other. If the land is. held by a mistake in the division, the statute begins to run only from the time of some unequivocal act indicating a claim to the part held by mistake.* If the respective claimants of land to which the title is disputed agree to submit the matter to arbitration, and that mean- while the party occupying shall remain in possession, the running of the statute is suspended pending the arbitration. It is obvious that the continuing possession of a grantor after his conveyance by deed cannot be adverse to the grantee.5 But it is held that the grantor in a deed may afterwards take and hold adverse possession of the premises as against his grantee. § 235. Possession by One in behalf of Another.— It has been held as matter of law, where on the death of a father, intestate, seised of lands in fee, his second son entered with- out title, that such entry was to be deemed as for the use of the elder son; and that the statute did not run against such elder son, the possession of the second son being the posses- sion of the elder. The principle to be deduced from the cases was said to be that the possession of the younger son so entering is the possession of the heir, who, therefore, can- 1 Ray v. Barker, 1 B. Mon. 364. ? Burrell v. Burrell, 11 Mass. 294. See § 247, post. 8 Id.; Brown v. Cockerell, 33 Ala. 38, 4 Phelps v. Henry, 15 Ark. 297; Brown v. Gay, 3 Me. 126; Gilchrist v, McLaughlin, 7 Ired. 310. ® Ronau v. Meyer, 84 Ind. 890; Lowry v. Tilleny, 31 Minn. 500. ® Ford v. Sawyer, 57 Cal. 65, citing 8 Washburn, R. P. 88; Franklin v. Dorland, 28 Cal. 175; Dorland v. Magilton, 47 id. 485; Hartman »v, Reed, 50 id. 485. 21 322 ADVERSE POSSESSION. [cHaP. VI. not be affected by length of time, upon the supposition of a possession adverse to him; and in this principle is found an answer to the argument that the circumstances or motives of the party taking possession ought to be left to the jury; be- cause the question is, not why the one person took possession, but why the other submitted to it; and in the absence of any proof to the contrary, it must be intended that he so sub- mitted because the possession was taken for him! The declarations of a widow in possession that she held the premises for her life and that after her death they would go to the heirs of her husband, are admissible to negative her allegation of twenty years’ possession under a claim of right.2, And it has been held that, if a widow remains in possession of land after her husband’s death, and marries again, and she and her second: husband continue in possession for a time longer than the period of limitation of the right of entry, neither she nor the second husband can set up the statute as against an action of ejectment brought by the children of the first husband? § 236. Burden to prove on Party setting up.—The pre- sumption of law is always in favor of the owner of the record title,t and when this involves no question of construction it is 1 Dowdall v. Byrne, Beatty, 873. See also Page v. Selfby, Bull. N. P. 102; Reading v. Royston, 2 Salk. 423; Fairclaim v. Shackleton, 5 Burr. 2604. In Gilbert on Tenures the doctrine is thus stated: ‘*‘ When a younger brother enters in this case, he does not enter to get a possession distinct from that of the elder brother, but to preserve the possessions of the brother in the family that nobody abates.”? Gilbert on Tenures, 2S. In Watkins’s note on the passage it is observed that the rule upon this subject is so strong that the entry of a younger brother of the half blood upon the elder brother will be an entry for him, and will have the effect of creating a possessio fratris in that elder son, to prevent the descent to the younger brother of the half blood who had entered upon him, and make the sister of the whole blood the heir. That is, by such an entry alone, there is no disseisin and the possession cannot be adverse, 2 Human v. Pettett, 5 Barn. & Ald. 223; Calhoun v. Cook, 9 Pa. St. 926. See also Hall v. Mathias, 4 W. & S. 331. 8 Cook v. Nicholas, 2 W. & S. 27; and see Hall v. Mathias, supra. 4 Ricard v. Williams, 7 Wheat. 59. And see Smith v. Lorillard, 10 Johns. 355; Jackson v. Rightmyre, 16 id. 325; Blaisdell »v, Martin, 9 SEC. I.] GENERALLY, INCIDENTS OF. 323 itself a seisin, the legal seisin in every case of mixed pos- session being according to the title! So the burden of proving adverse possession is upon the party relying thereon,? and the law always presumes a subordinate in place of an adverse holding. On the other hand, since the law never presumes a wrong, the bare possession of the actual occupant is evidence of a present occupation by right. The mere parol declarations, against his own interest, of the owner of the record title are held not evidence to defeat such title, as being inadmissible under the statute of frauds. Under the ancient statute of fines, which was virtually a statute of limitations, it was settled that he who had the estate or interest in him could not be put to his action, entry, or claim; for he had that which the action, entry, or claim would vest in, or give him.® Thus it follows that no person can set up the statute of limi- tations in order to create a title in himself, unless his posses- sion has been adverse to that of the person who claims against him.? And the possession must be so open and exclusive as to amount to a disseisin.® § 237. To maintain, Opposing Party must have Right of Ac- tion: Disseisin.— The difficulty which often occurs in deter- N. H. 253; Straw v. Jones, id. 400; Jackson v. Thomas, 16 Johns. 293; Huntington v. Whaley, 29 Conn. 391; Jones v. Hockman, 12 Iowa, 101; Clagett v. Conlee, 16 id. 487; Harvey v. Tyler, 2 Wallace, 328. 1 Codman v. Winslow, 10 Mass. 146. 2 Alexander v. Wheeler, 69 Ala. 332; Bolden v. Sherman, 101 III. 483. 3 Bryan v. E, St. Louis, 12 Ill. App. 390. In Brookfield v. Stephens, 40 Ark. 366, it was held that the mere possession by a bankrupt of prop- erty scheduled in bankruptcy, subject to the mortgage, without evidence of how the possession was maintained, or of the nature of the property, was not adverse. 4 Ricard v. Williams, 7 Wheat. 59; Ruffin v. Overby, &8 N. C. 369. 5 Jackson v. Cary, 16 Johns. 302; Daniel v. Ellis, 1 A. K. Marsh. 60. & Podger’s Case, Rep. 104. 7 The term ‘‘ adverse possession ’’ is familiarly used in the modern law, as implying that disseisin upon which an adverse title is founded; the old term ‘ disseisin ” being expressive of an act the necessary effect of which is to divest the estate of the former owner. Reading v. Royston, 2 Salk. 423. 8 Sparhawk v. Bullard, 1 Met. 93. 324 ADVERSE POSSESSION. [cHaP. VI. mining what constitute an adverse possession is not removed by saying that it is a possession acquired by disseisin; for a solution of the question what constitutes a disseisin is often difficult.1 Adverse possession may best be defined as an 1 Coke says that seisin signifies in the common law possession. Co. Litt. 1584. Again he says that seisin is derived from the Latin sedendo. “ For until a man have seisin, all is labor et dolor et vexatio spiritus ; but when a man hath seisin he may sedere et acquiescere. In all suits to recover seisin or possession, he who prosecutes them ought to labor; but when he hath obtained seisin he may sedere et accumbere in peace and tranquillity.” 6 Rep. 58. See Frost v. Cloutman, 7 N. H.15. The doctrine of actual Disseisin and Disseisin by Election, as laid down in the earlier cases, is stated by Mr. Smith in his note to the case of Taylor v. Horde, 1 Burr. 60. He says: ‘¢ The doctrine of adverse possession, until very lately constituted, and perhaps still constitutes, one of the least settled, although most im- portant heads of English law. The difficulties which surrounded it seem to have had an origin subsequent to the abolition of a great proportion of the ancient tenures by St. 12, Car. 2, cap. 24. Before that event the difference seems to have been well understood between the sort of wrong- ful holding which would reduce the interest of the lawful owner to a right capable of being barred by the statute of limitations, and substitute the wrong-doer for him meanwhile as the representative of the freehold and the person responsible to the lord for feudal dues and services, and that species of unwarrantable possession which was accompanied by no such consequences. At all events, it is not till a comparatively modern period that we find any complaints about the difficulty of ascertaining what did or what did not constitute adverse possession. At last, however, this diffi- culty not only arose but became so considerable that in Taylor dem. Atkyns v. Horde, so long the Jeading case upon this subject, we find Lord Mansfield saying that ‘the precise definition of what constituted a dis- seisin, which made the disseisor the tenant to the defendant’s precipe, though the right owner’s entry was not taken away was once well known but is not now to be found. The more we read the more we shall be confounded.’ The view taken by his lordship in that case is that disseisin at the common law ‘signified some mode or other of turning the tenant out of his tenure and usurping his place and feudal relation;’ an act which was accompanied by this consequence, namely, that if the disseisor died seized, the descent to his heir gave him the right of posses- sion, and tolled or took away the true owner’s entry. Co. Litt. 238 a, Litt. 426. This being the state of things at common law, the assize of novel disseisin was invented; which. being found a beneficial remedy but being applicable only to the case of a person disseised, a fiction grew up and was encouraged by the courts, according to which a party wrongfully out of possession, although not disseised, properly speaking, of the free- hold, was permitted to treat the wrong done him as a disseisin, for the SEC. I.] GENERALLY, INCIDENTS OF. 325 actual, visible, and exclusive appropriation of land, com- menced and continued under a claim of right — cither openly sake of entitling himself to an assize. ‘In a word,’ says Lord Mansfield, ‘for the sake of the remedy, as between the true owner and the wrong-doer to punish the wrong, and as between the true owner and naked possessor to try the title, the assize was extended to almost every case of obstruction to an owner’s full enjoyment of lands, tenements, and hereditaments.’ ‘This sort of supposed disseisin obtained the name of disseisin at election, for the purpose of distinguishing it from the other or actual disseisin, the conse- quences of which were widely different. For after an actual disseisin the disseisee could not devise or dispose of the lands, inasmuch as his interest was by the disseisin cut down to a right of entry which the policy of the old law against maintenance would not allow him to depart with; and further, if a descent was cast after a year, he lost his right of entry, and was put to his real action in order to reinstate himself. When St. 21 Jac. I. cap. 16, had passed, his condition became still worse; for by that act it was ordered ‘that no person shall make any entry into any lands, tene- meuts, or hereditaments, but within twenty years next after his or their right or title shall first descend or accrue to the same, except infants, Jemes coverts, persons non compotes mentis, imprisoned or beyond the seas, who shall have ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, to make their entry or claim in.’ Previous to this, the claimant might have entered at any time, provided that his entry was not tolled. Bevill’s Case, Co. 11b. But this statute in twenty years barred the dis- seisee’s entry in the same way that a descent cast barred.it at the common law; and the right owner was after that time put to his real action, the period for commencing which had been before limited by St. 32 H. VIII. c. 1, and was in the extreme case — that, namely, of a writ of right on the demandant’s ancestor’s own seisin — terminated at the expiration of sixty years from the time when the right first accrued which the writ was’ sued forth to recover. This statute, however, it is apprehended, only ran against the true owner in those cases in which he would at common law have been put out of his tenancy and reduced to his right of entry; but not to cases in which he might have elected to consider himself disseised, although not really so, for the purpose of entitling himself to maintain an assize; and consequently, whenever the question arose whether a par- ticular claimant was barred by having been twenty years out of possession, the mode of solving this question was by considering whether he had been out of possession under such circumstances as had reduced his interest to a right of entry ; for, if he had, then, as that right of entry would be barred by St. 21 Jac. I. at the end of twenty years, the possession during the in- termediate time was adverse to him. Now, in order to determine whether the claimant had been out of possession under circumstances which would turn his estate to a right of entry, it was necessary to inquire in what 326 ADVERSE POSSESSION. [cHaP. VI. avowed or constructive, as arising from the acts and circum- stances attending the appropriation — to hold the land against manner the person who had been in the possession during that time held. See Reading v. Royston, Sal., 423. If he held in a character in com- patible with the idea that the freehold remained vested in the claimant, then, as the case would arrange itself under some one of the heads, dis- seisin, abatement, discontinuance, deforcement, or intrusion, all of which expressed at common law different modes of substituting a freeholder by wrong for one by right, so as to make the new-comer tenant to the lord and to a stranger’s precipe, see 1 Roll. 659, etc.; Co. Litt. 277, . . . it followed that the possession in such character was adverse. But it was otherwise if he held in a character compatible with the claimant’s title. And in order to ascertain in what character the person in possession held, the court would look at his conduct while in possession. See Doe d. Grubb, 10 B. & C. 816; Smartle v. Williams, 1 Salk. 246; Williams v. Thomas, 12 East, 141; Doe v. Perkins, 8 M. & S. 271; Hall v. Doe d. Surtees, 5 B. & A. 687; Doe d. Foster v. Scott, 4 B. & C. 706; Doe d. Human v. Pettet, 5 B. & A. 223; and R. v. Axbridge, 2 Ad. & Ell. 520. It is there- fore apprehended that at the time of the enactment of 8 & 4 Wm. IV. ¢. 27, the question whether possession was or was not adverse was to be decided by inquiry whether the circumstances of that possession were sufficient to evince its incompatibility with a freehold in the claimant. It is not in- tended to carry the discussion of this part of the subject much further, since the above statute has, as will be shown, rendered the doctrine of adverse possession of less importance, so far as claims of title founded upon twenty years’ enjoyment are concerned.’? See Smith’s Leading Cases, vol. 2, p. 393. It was in reference to disseisin as between the law- ful owner and trespasser that Littleton wrote, he considering everything wrong to the possession to be a disseisin. ‘A disseisin,’? he says, ‘‘ is where one enters intending to usurp the possession and to oust another of his freehold; and, therefore, gquerendum est a judice quo animo hoc fecerit,’ why he entered and intruded.’’? The inquiry is into the quo animo, or into the intent with which the possession is taken and held. As expressed by the Supreme Court of the United States, ‘‘ the whole inquiry is reduced to the fact of entering, and the intention to usurp possession.’? Brad- street v. Huntington, 5 Peters, 440; and see Gospel Society v. Pawlet, 4 id. 504; Blight v. Rochester, 7 Wheat. 535; Willison v. Watkins, 3 Peters, 53; Barr v. Gratz, 4 Wheat. 213. In legal language the intention guides the entry and fixes its character. Ewing v. Burnett, 11 Peters, 41. There is, says Story, J., a distinction between disseisins which are in spite of the owner, and disseisins at his election. But the distinction often turns upon other principles than those which have been stated. The owner cannot elect to consider himself disseised where the act is not of such a nature as in law affords a presumption of a disseisin. But where an act is done which is equivocal and may be either a trespass or disseisin accord- SEC. I.] GENERALLY, INCIDENTS OF. 327 him who was seised. The principle upon which the statute of limitations is applied is not merely that the party pleading ing to the intent, there the law will not permit the wrong-doer to qualify his own wrong and explain it to be a mere trespass unless the owner elects so to consider it. And he adds, ‘‘ Notwithstanding the language of Lord Mansfield, in [Taylor] v. Horde, what constitutes a disseisin is, at least, in this country well settled.’? The tendency of modern decisions in Eng- land has been to disclaim the admission of any species of disseisin, where the consequence would be to work moral injustice, and particularly where the party entered by a good title; and the old learning on the subject is much qualified by recent cases. Prescott v. Nevers, 4 Mason (C. C.), 829; and see Jerritt v. Weare, 3 Price, 575; Township Proprietors v. McFar- land, 12 Mass. 325. See also Story v. Saunders, 8 Humph. 663; Foxcroft v. Barnes, 29 Me. 128; Long v. Mast, 11 Pa. St. 189; Taylor v. Burnsides, 1 Gratt. 165; Overton v. Davisson, 1 id. 211; Towle v. Ayer, 8 N. H. 57; Kennedy v. Townsley, 16 Ala. 239; Miller v. Platt, 5 Duer, 272. It is said that in order to give a party his right to elect to consider himself dis- seised, there must be what can in law be considered a possession of the supposed disseisor, either wrongful in itself or made wrongful by some act or claim of his, inconsistent with, and in derogation of, the right of the owner. Towle v. Ayer, 8 N. H. 57. If the person having the title and the right of entry into lands make an actual entry upon the tenant in possession, who resists the entry and persists in the occupation, this is a disseisin at the election of the owner, upon which a writ of entry may be main- tained, although the tenant may show on the trial that he held by lease under one without title. Dow v. Plummer, 17 Me. 14. By a levy on real estate, the debtor in possession becomes the tenant at will of the creditor, and if he resists the entry of the creditor he may treat him as a disseisor at his election, Bryant v. Tucker, 19 Me. 383. The word ouster is sometimes used as equivalent to disseisin. Itisa general term which includes disseisin, properly so called, as well as abate- ment, intrusion, and discontinuance. 3 Bl. Com. 167. It of course does not imply actual violence; for if a possession taken and held by actual force would operate to bar the right of the true owner, a breach of the peace would then be made the foundation of a legal title. Jackson v. Porter, Paine, C. C. 457. By the civil law, prescription could only run in favor of him who possessed neque clam, neque precario, et neque vi. See Cholmondeley v. Clinton, 2 Mer. 359. A claim made to land under color of right is an ouster; otherwise it is a mere trespass. Ewing v. Burnet, 11 Peters, 41. Where the first possessor died and a descent was cast and the infant heirs were driven from the actual possession by a public enemy, the possession was considered by the equity of the jus postliminii as revested in the heirs on the removal of the hostile force. Smith v. Lorillard, 10 Johns. 338. Where a stranger entered upon the land and received the profits with the true owner for more than twenty years, the words “actual ouster,” it 328 ADVERSE POSSESSION, [cHAP. VI. it has set up an adverse claim as having existed during the period specified in the statute, but that the adverse claim is accompanied by such an invasion of the rights of the opposing party as to give the latter a cause of action, which, not having been prosecuted within the time limited by law, is presumed to be extinguished or surrendered. Thus a mere claim of title, not accompanied by adverse possession, gives no right of action to the person against whom it is asserted, and consequently his rights are unaffected by the statute! It is the occupation with an intent to claim against the true owner which renders the entry and possession ad- verse. “It is not possession alone, but that it is accompanied with the claim of the fee, which, by construction of law, is deemed prima facie evidence of such an estate.”? Therefore it has been held that if the owner of land, through inadver- tence or ignorance of the dividing line, includes a part of an adjoining tract within his inclosure, it is not an adverse possession or so in the nature of a disseisin as to prevent the true owner from conveying and passing the same by appears, were used in reference to that circumstance, to distinguish such an entry from an entry where the owner is put out of possession. It was ob- served by Lord Mansfield that some ambiguity seemed to have arisen from the term ‘ actual ouster,”’ as if this meant some act accompanied by real force, and as if a turning-out by the shoulders were necessary; but this was not so. A man, he said, may come’in by rightful possession and yet hold over adversely without a title; and if he does, such holding over un- der the circumstances would be equivalent to an actual ouster.. For in- stance, length of possession under a particular estate, as a term of one thousand years, or under a lease for lives, as long as the lives are in being, gives no title; but if a tenant per autre vie hold over for twenty years, such holding over will in ejectment be a complete bar to the remainder- man or the reversioner, because it was adverse to his title. Doe v. Prosser, Cowp. 217. 1 Campan »v. Lafferty, 50 Mich. 114; Abeel v. Harris, 11 Gill & J. 871. And see Cooper v. Smith, 9S. & R. 26. Bartholomew v. Edwards, 1 Houst. (Del.) 17. The survey, allotment, and conveyance of a piece of land, and the recording the deed, does not constitute a disseisin, without any open occupation. Thayer v. McLellan, 23 Me. 417; Tilton v. Hunter, 24 id. 29. And see also Bailey ». Carleton, 12 N. H.9; Nichols v. Todd, 2 Gray, 568; Oatman v. Fowler, 43 Vt. 462, 2 Jackson v. Porter, Paine (C. C.), 457. SEC. I.] GENERALLY, INCIDENTS OF. 329 deed.1 The acts of possession must be such as to indicate a claim of right in the soil.? It is obviously not necessary in order to constitute an adverse holding that there should be a rightful title; for, whenever adverse possession is set up, the idea of right is excluded. The fact of the possession and the intent with which it was commenced or continued are the only tests; and it must necessarily be exclusive of any other rights.$ § 238. Deed of Disseisee: Effect of.—It is obvious that the mere possession of one not claiming title to the premises, is not a disseisin of the rightful owner, and the latter may therefore convey or devise.4 But the deed of a disseisee, during the continuance of the disseisin, is inoperative to convey title as against the disseisor or person holding ad- versely, and others afterwards coming in under him. In respect to the rest of the world, however, such a deed is operative, and passes the grantor’s title.5 Accordingly, if, after such deed, the person who held adversely voluntarily abandon possession, the grantee of the disseisee may enter and enjoy the land; or, if a stranger enter, the grantee may bring ejectment and oust him. But if the adverse holder continue in possession after the deed, the grantor is the only person who can sue for the land, and a recovery by him will enure to the benefit of his grantee. Such adverse possession will not, however, affect the deed, if it appear that both the grantor and the adverse claimant were under an equitable title to convey. Thus A, being the owner of a farm, executed 1 Brown v. Gay, 3 Me. 126; Gilchrist v. McLaughlin, 7 Ired. 310. But see § 250, note, post, and cases cited. 2 Bartholomew v. Edwards, 1 Houst. (Del.) 17. Soa squatter cannot avail himself of his occupancy unless he has denied or impugned the title of the lawful owner. Sackett v. McDonald, 8 Biss. 394. 8 Smith v. Burtis, 9 Johns. 174. : 4 Jackson v. Todd, 2 Caines, 183. 5 Shortall v. Hinckley, 31 Il]. 219. ® Parker v. Merrimack Proprietors, 3 Met. 91; and see Bradstreet v, Huntington, 5 Peters, 402; Livingston v. Proseus, 2 Hill, 526; Jackson v. Brinckerhoff, 3 Johns. Cas. 101; Jackson v. Vredenbergh, 1 Johns, 159; Williams v. Jackson, 5 id. 489; Jackson v. Leggett, 7 Wend. 877. 330 ADVERSE POSSESSION. [cHAapP. VI. a deed to B, intending thereby to convey the whole ; but, by reason of a mistake in the description, the deed purported to convey a part only of the farm. B took possession and executed a mortgage, intended to cover the whole farm, but which, in fact, contained a description copied from the deed to B. The mortgage was assigned to D, and foreclosed, he becoming the purchaser. Some time afterwards D discovered the mistake in the deed and mortgage, and requested A and B to correct it, threatening to proceed in equity for a refor- mation of the deeds if they should refuse. B said he would abide by whatever A thought proper to do in the matter; whereupon the latter executed to D a quitclaim deed of the whole farm, B being still in possession. It was held that D acquired a title to the whole farm.1 SECTION II. OF THE CONTINUITY AND PRIVITY OF POSSESSION. § 239. Mere Successive Possessions not Effectual.—It is essential in order to the existence of such an adverse posses- sion as will create title, that there shall be a continuity of possession during the time limited by statute; and it is well established that where several persons enter on land in suc- cession, the several possessions cannot be tacked, so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected.? Thus if one merely 1 Cameron v. Irwin, 5 Hill, 272. The purchaser of an equity of re- demption sold by the sheriff on execution obtains by the sale a seisin of the land, unless the mortgagor be disseised at the time of the sale, in which case he obtains only a right of entry; and in order to maintain a writ of entry, counting upon his own seisin, he must actually enter. Poignard v. Smith, 6 Pick. 172. The old cases with regard to mainte- nance and champerty go further than would now be sustained in courts of equity. Baker v. Whiting, 3 Sumner (C. C.), 475. 2 Per Wilde, J., in Melvin v. Merrimack Proprietors, 5 Met. 15; Moore v. Collishaw, 10 Pa. St. 224; Christy v. Alford, 17 How. 601; Doswell v. De La Lanza, 20 id. 29; Doe v. Brown, 4 Ind. 148; Morrison v. Hayes, 19 Ga. 294; Chouquette v. Barada, 28 Mo. 831; Shaw v. Nicholay, 80 id. SEC. II.] CONTINUITY AND PRIVITY OF POSSESSION. 831 enters and commits a trespass, and then goes off, and another comes after him and in turn commits a trespass, there is no privity between these persons, nor can the possession be said to be continued from one to another.’ For, whenever one trespasser quits the possession, the seisin of the true owner is restored, and an entry afterwards wrongfully made by another constitutes a new disseisin.2 The continuity of pos- session having been thus broken before the expiration of the period of time limited by the statute, an entry within the time limited destroys the efficacy of all prior possession, so that, to gain a title under the statute, a new adverse pos- session for the time limited must be had. But there may be occasional interruptions in the actual occupancy, and even possession by others not shown to be trespassers, and claim- ing adversely, without breaking the continuity of possession.* And a mere interval in possession, though for several years, is not conclusive evidence of abandonment, which is always a question of fact for a jury.6 Thus it was held that a mere lapse of occupancy would not of necessity break the continuity 99. A mere survey, made by the true owner, but not with the purpose of resuming possession, is not such an entry as will break the continuity of possession. Hollinshead v. Nauman, 45 Pa. St. 140. 1 Overfield v. Christie, 7S. & R. 177. for the character of the vendee’s pos- 1 Jackson v. Woodruff, 1 Cowen, 286. In this case, where A held land under a patent, and B held adjoining land under another patent, and in the location under their respective patents A, by mistake, cur- tailed his location on the side of B, in consequence of which B, although he had located at first on the true line, afterwards claimed up to A’s location, and conveyed a supposed gore between the locations in the patents, — it was held that A was not concluded in an action of ejectment, but might recover against any one claiming a part of the supposed gore under the title of B: See also Jackson v. Richards, 6 Cowen, 623; Hunter v. Chrisman, 6 B. Mon. 463. 2 Chandler v. Spear, 22 Vt. 388. 3 Spear v. Ralph, 14 Vt. 400. 4 Lea v, Polk Co. Copper Co., 21 How. 493; Hall v. Law, 102 U.S. 461; Bellows v. Jewell, 60 N. H. 420; Dickinson v. Breeden, 80 Ill. 279. So a quitclaim deed. Cowley v. Monson, 10 Biss. (C. C.) 182; Ham- mond v. Hinson, 68 Ga. 767; see Minot v. Brooks, 16 N. H. 314; Pugh »v. Youngblood, 69 Ala. 296. In Texas, it has been held that an unrecorded deed will not give color of title. Porter v. Chronester, 58 Tex. 53. But see Wimberly v. Bailey, id. 222. 5 Jackson v. Todd, 2 Caines, 183; Jackson v. Sharp, 9 Johns. 162; Jackson v. Waters, 12 id. 365; Jackson v. Thomas, 16 id, 293; Jackson v. Wheat, 18 id. 40; Jackson v. Newton, 18 id. 365; Roberts v. Pillow, 1 Hemp. (C. C.) 624; Hanna v. Renfro, 32 Miss. 125; Veal v. Robinson, 70 Ga. 809; Fry v. Baker, 59 Tex. 404; Logan v. Bull, 78 Ky. 607; Hunton v. Nichols, 360 ADVERSE POSSESSION. [CHAP, VI. session, as adverse, is not affected by the defects of his title; and if the entry be under color of title, the possession will be adverse, however groundless the supposed title may be! Thus where a highway had ceased to be used by the public as such, but had never been legally discontinued, and the selectmen undertook to convey the town’s interest in it, and their gran- tee exercised exclusive acts of ownership over it for sixty years, it was held that his adverse possession would run against the private right of an adjoining owner, and that the deed though passing no title gave character to the possession under it.2 It would seem, however, that to make a deed there must be a capable grantor, and that if the ostensible grantor cannot, under the law, be such, his deed cannot make color of title.2 A claim made in good faith by color of title is not dis- paraged by the fact of the occupants’ knowledge that the boundary lines of the granted premises are uncertain, and that the title is disputed. A grant of land, however, which has been judicially declared null and void, and has been, in effect, recalled and cancelled by a competent tribunal, gives no color of title ;5 but it is held that a deed founded on a merely void 55 Tex. 217. Itis said that color of title is anything in writing con- nected with the title which serves to define the extent of the claim. Walls v. Smith, 19 Ga. 8, as where an administrator’s deed would be void by reason of irregularity in the proceedings authorizing it. Young v. Walker, 26 Kan. 248. It has been held that a deed indefinite in descrip- tion may give color of title when accompanied by extrinsic evidence to explain the description. Mansfield v. Pollock, 74 Mo. 185. But see, ap- parently contra, Fry v. Baker, ‘59 Tex. 404. Although a mortgage deed with unexecuted trusts does not give color of title, yet a possession under it for ten years after default raises a presumption of a release of the equity of redemption, and a discharge of the debt; and a reconveyance will be presumed by a similar possession in the mortgagor. Edwards v. Tipton, 85 N. C. 479. 1 La Frombois v. Jackson, 8 Cowen, 589; Mitchell v. Persons unknown, 59 Me. 448; Edgerton v. Bird, 6 Wis. 527. 2 Cady v. Fitzsimmons, 50 Conn. 209. 8 Pittsburg, Fort Wayne, & Chicago R. R. Co. v Reich, 101 Ill. 157. But see Young v. Walker, 26 Kan. 243, supra. 4 Cornelius v. Giberson, 1 Dutch. 1. 5 Marsh v. Wier, 21 Tex. 97. A bond signed by ‘ A as agent ’’ gives no color of title to A. On the contrary, it is a disclaimer of title by him. Simmons v. Lane, 25 Ga. 178. SEC, IV.] COLOR OF TITLE. 361 or voidable decree in chancery, gives a colorable title1. A deed by one tenant in common of the whole estate in common to a third person gives color of title? and a deed by an infant gives a colorable title and possession adverse to the infant. So possession of land under a grant from the state is a posses- sion under color of title, and adverse, even where the grant is void for irregularity, if the tenant enters under it in good faith.! 1 Whiteside v. Singleton, 1 Meigs, 207. _ 2 Ross v. Durham, 4 Dev. & Bat. 54; Weisinger v. Murphy, 2 Head (Tenn.), 674. 8 Murray v. Shanklin, 4 Dev. & Bat. 289. 4 Moody v. Fleming, 4 Ga. 115. A sheriff’s deed, without producing the judgment and execution, gives color of title. Riggs v. Dooley, 7 B. Mon. 236; Northrop ». Wright, 7 Hill, 476; McIntyre v. Thompson, 4 Hughes (C. C.), 562; North v. Hammer, 34 Wis. 425; Hester v. Coats, 22 Ga. 56; Hammond »v. Hinson, 68 id. 767; Brien v. Sargent, 18 La. Ann. 198. But such a deed will take effect only from the date of its execu- tion, and will not relate to the time of the sale. Blount v. Robeson, 3 Jones, Eq. (N. C.) 73. And so a deed from a collector of taxes. Hearick v. Doe, 4 Ind. 164; Sutton v. McLoud, 26 Ga. 638; Baily v. Doolittle, 24 Til. 577. So although the deed be void on its face, the statute providing that color of title may arise upon a ‘‘ written instrument as being a con- veyance of the premises.” McMillan v. Wehle, 55 Wis. 685. See Syd- nor v. Palmer, 29 id. 226. An administrator having no control over the land may purchase at a tax sale, and set up his deed as color of title. Stark v. Brown, 101 Il. 395. An unrecorded quitclaim deed of all a grantor’s title under,a collector’s deed, though the collector’s deed con- veyed no interest, is color of title. Minot v, Brooks, 16 N. H. 374; but see contra, Pugh v. Youngblood, 69 Ala. 296. And it is held in Pennsyl- vania that a purchaser of land sold for taxes does not acquire a possession upon which he can rely to sustain a claim under the statute of limitations. Cranmer v. Hill, 4 W. & S. 36. But it is otherwise in Arkansas, where © there has been a subsequent undisturbed possession of five years. Pillow v. Roberts, 18 How. 472. The deed of an attorney who has no authority to convey is held to convey a colorable title. Hill v. Wilton, 2 Murphy (N.C.), 14; and see also Farrow v. Edmundson, 4 B. Mon. 605; Munro v. Merchant, 28N. Y.9. A tax certificate does not constitute a color of title. McKeigham »v. Hopkins, 14 Neb. 361; and see Dalrymple v. Milwaukee, 53 Wis. 178; Manseau v. Edwards, id. 457; Sanborn v. Cooper, 31 Minn. 307. A sheriff’s return upon a fieri facias is sufficient to give a colorable title. Dobson v. Murphey, 1 Dev. & Bat. 586. Where A purchases under an execution against B, takes a deed, and, on the same day conveys to B, though the purchase and conveyance be at the request of B, and no money 362 : ADVERSE POSSESSION. [cHaP. VI. § 260. Possession under, bars Title by an Hider Deed. — An adverse possession during the time limited under a claim or color of title merely void, is a bar to a recovery under an elder title by deed, although the adverse holder may have had notice of the deed ;1 for although a vendee in fee derives his title from the vendor, his title, though derivative, is ad- verse to that of the vendor. He enters and holds for himself, and not for the vendor.2 It follows that, wherever one in pos- session holds for himself, to the exclusion of all others, the possession so held must be adverse to all others, in whatever relation in point of interest or privity he may stand to the others.2 In such cases the grantee believing his title to be good, his possession cannot in strictness be’said to be held in subordination to the title of the legal owner; for the posses- sion is taken by the grantee as owner, and because he claims to be owner, and the grantor admits that he is owner, and the grantor may claim, and reassert his title, because he has not conveyed his estate according to law, and thus regain posses- sion. But until the grantor does this by entry or action, or by making a lease to a third person, the possession is adverse, is paid, B has a colorable title. Rogers v. Mabe, 4 Dev. 180. See also Dobson v. Erwin, 4 Dev. & Bat. 201; Tubb v. Williams, 7 Humph. (‘Tenn.) 367. Property sold by an intestate to his son, of which the possession is held by the wife, who is administratrix, the son living in the family, is not held by him adversely to the intestate’s creditors. Snodgrass v. An- drews, 80 Miss. 472. The sale by an administrator of the land of his solvent intestate under a license of the probate court gives color of title if accompanied by a deed from the administrator (Livingston v. Pender- gast, 34 N. H. 544), though the deed be void as against heirs for want of notice. Vancleave v. Milliken, 13 Ind. 105. A mortgage under a purchase at a foreclosure sale, though the sale prove to be invalid, has color of title. Chickering v. Failes, 26 Ill. 507. A mortgagor’s vendee, like the mortgagor himself, holds in subordination to the title of the mortgagee, and to convert his possession into an adverse hold- ing he must renounce or disclaim the mortgagee’s right, and the mort- gagee must have notice of the disclaimer. State v. Connor, 69 Ala. 212. 1 Ewing v. Burnet, 11 Peters, 41; but see Brownson v. Scanlan, 59 Tex. 222; Saunders v. Silvey, 55 id. 46. 2 Blight v. Rochester, 7 Wheat. 535. § Bradstreet v. Huntington, 5 Peters, 402; and see Willison v. Watkins, 3 Peters, 53. SEC. IV.] COLOR OF TITLE. 363 and, accordingly, at the end of the period of limitation takes away the right of entry and of action. § 261. Applications of the General Rule.—In accordance with the principle stated, it has been held that proof of the execution, acknowledgment, and delivery of a defective deed of conveyance, and possession of the land for several years by the grantee, is sufficient to vest such an estate in the grantee as will enable his heir to recover in ejectment.? If the party in possession, claiming under a deed, and supposing there is a defect in the title, applies to purchase the title of one claim- ing the same premises, for the sole purpose of strengthening or quieting his own title, this is not an abandonment of his own title, nor an admission of a superior title in another.’ So it is held that a defendant in ejectment is not estopped to claim title arising under the statute of limitations by the fact that he has taken out a warrant for the land and fixed a pe- riod for the commencement of title under it within twenty- one years before suit brought.t It is possible, however, that repeated applications on the part of the occupant to pur- chase the premises in question may afford a presumption that the occupant entered by permission, and not as claiming 1 Sumner v. Stevens, 6 Met. 837; Barker v. Salmon, 2 id. 82; Parker v. Merrimack Proprietors, 3 id. 91; Pipher v. Lodge, 16S. & R. 214. And see Knox v. Hook, 12 Mass. 829; Macklot v. Dubreuil, 9 Mo. 477. The rule appears to be held otherwise in Kentucky. Gray v. Patton, 2 B. Mon. 12. It is held, somewhat broadly, that where one is in possession of land, claiming title under a state of facts which of themselves show the character and extent of his claim, such facts perform sufficiently the office of color of title. Bell v. Longworth, 6 Ind. 273; Doe v. Hearick, 14 id. 242. And see McLellan v. Kellogg, 17 Ill. 498, where it is held that color of title may be given without any writing, and may commence in a trespass. See also § 264, post. In Tennessee, color of title is where the possessor has a conveyance of some sort by deed, or will, or inherit- ance which he may believe to be a sound title. Wilson v. Kilcannon, 4 Hay. (Tenn.) 182. And see also 5 id. 286. In North Carolina, there Must be an instrument not obviously defective, professing to pass the title. Dobson ». Murphey, 1 Dev. & Bat. 586. ° Brashear v. Hewitt, 1 Har. & McH. 222. 8 Jackson v. Newton, 183 Johns. 355. 4 Graffins v. Tottenham, 1 Watts & S. 488; and see Northrop ». Wright, 7 Hill, 476. 364 ADVERSE POSSESSION. [ CHAP. VI. adversely! It is considered that deeds, fraudulent on the part of the grantor, if accepted in good faith by the grantee, without knowledge of the fraud, give a color of title under the statute of limitations.” § 262. Does not arise under Void Foreign Grant, Semble. — It is held that the ineffectual grant of a foreign government does not confer such title as to render the possession held under it adverse. Thus in New York the court held that it “could not take notice of any title to land not derived from our own government, and verified by a patent under the great seal of the state, or province, of New York,” and therefore refused to recognize claims to lands within the state, under grants made by the French government in Canada, prior to the treaty between Great Britain and France in 1763, — such claims being regarded as furnishing, at best, foundations for equitable titles, and as affording no evidence of legal title that could be recognized by a court of law.2 Again, where it was attempted to set up an adverse possession under a title derived from one whose own title was derived from a French grant, the court recognized the principle that a title not derived from our own government could not be noticed, and that grants from the French government were to be treated as nullities, and therefore as affording no legal evi- dence of title which the court could recognize, and therefore that possession taken under them could not be deemed as taken in hostility to any private or individual right. But it 1 Jackson v. Creal, 138 Johns. 116. But in Missouri, it was held that the acceptance of a deed is not such a recognition of the vendor’s title as to estop the vendee from setting up the statute of limitations. Blair v. Smith, 16 Mo. 278. 2 Gregg v. Sayre, 8 Peters, 244. 8 Jackson v. Ingraham, 4 Johns 168. 4 Jackson v. Waters, 12 Johns. 365; and see Smith v. Burtis, 9 id. 180; Smith v. Lorillard, 10 id. 356. In La Frombois v. Jackson, 8 Cowen, 589, Viele Senator, referring to the decision in Jackson v Waters, ex- pressed the opinion that it was not the true doctrine, and maintained that the policy and the express terms of the statute of limitations protected every possession, under pretence or claim of right, without the least re- gard to the validity of the source whence that claim is derived. It was SEC. IV.] COLOR OF TITLE. 865 would seem to be obvious that a defective grant from a for- eign government, which might by a perfect grant have con- veyed a valid title, may afford color of title, and so be the foundation of an adverse possession. § 263. Nor, in the United States, from Indian Grant,—A grant to a private person by the aboriginal natives of the United States, not being from a source acknowledged as legit- imate, gives no color of title, and possession under it does not affect the validity of a patent afterwards granted by the gov- ernment. The policy or abstract right of granting lands in the occupation of the Indians as original lords of the soil has been deemed a political question, with which the courts of judicature have no concern.1 An occupant under an Indian grant, the Indians having afterwards resumed the title and granted it to the crown before the Revolution, was a tenant at will of the king, and afterwards of the sovereign power estab- lished in this country; and no length of such occupancy will give a title by adverse possession.? The subject of the legal effect and operation of Indian possession and of Indian deeds has received careful examination by the Supreme Court of the United States. Chief Justice Marshall, who delivered the opinion of the court, went into a particular examination of the principles and policy touching the rights of the na- tives which had governed the European nations making dis- coveries and settlements in this country. The title of the government to the country was placed on the ground of dis- covery, which title was consummated by possession, and gave to the government the exclusive right of acquiring the soil from the original occupants and of regulating the relations that were to exist between the government and the natives.® held that a possession, under a Connecticut title, of land in Pennsylvania, during the period of limitation prescribed by the statute of the latter state, was a bar to recovery by one having the Pennsylvania title. Barney v. Sutton, 2 Watts, 37. See § 252, note, ante. 1 Jackson v. Hudson, 3 Johns. 384; Thompson v. Gotham, 9 Ohio, 170; Cocke v. Dotson, 1 Overt. (Tenn.) 169. 2 Jackson v. Porter, 1 Paine (C. C.), 457. 8 Johnson v. McIntosh, 8 Wheat. 571. 366 ADVERSE POSSESSION. [CHAP. VI. § 264. May exist without written Conveyance: Examples.— It would not seem to be necessary, in order to give color of title, that there should be a written conveyance of the land or a re- covery by process and judgment, an entry being by color of title when it is made under a claim of right made in good faith to a title existing in another! So it is held that if, on an agree- ment for the sale of land, the consideration is paid, and the owner consents that the buyer may enter and hold the land as his own, the entry and possession of the buyer cannot be deemed subordinate to the title of the seller, but as adverse to the latter? so soon as he has paid the purchase-money.® Where a man and his wife sold the wife’s land by verbal contract and put the vendee’s wife and children into posses- sion, and three years afterwards the husband, the wife being dead, made a deed of the premises to the grantee’s children who remained in possession up to the time of suit, it was held that the possession of the vendee’s wife and children from the time they went on the land was adverse to the vendors, and that the character of the possession was not changed by the acceptance of the deed given after the wife’s death.t Where A, having contracted to purchase lands of B, paid part of the purchase-money, but titles were never made, and A gave the land to his son C, who went into possession, it was held that the possession of the latter was adverse as to both A and B; and that declarations made by A, subsequently to the gift to 1 Per Gibson, C. J., in McCall v. Neely, 3 Watts, 72. But where the plaintiff in ejectment offered to prove that the person under whom he claimed had purchased and paid for the land in question, and had been many years in possession of it, but it did not appear that any deed had been given, it was held that such person had no legal title to the land, and that the plaintiff could derive none from him. Eells v. Day, 4 Conn. 95. 2 Brown v. King, 5 Met. 173; Ellison v. Cathcart, 1 McMullan (S. C.), 5; Pendergrast v. Gullatt, 10 Ga. 218; Drew v. Towle, 30 N. H. 531; Paxson v. Bailey, 17 Ga. 600; Lander v. Rounsaville, 12 Texas, 195; McQueen v. Ivey, 86 Ala. 308; Magee v. Magee, 37 Miss. 138; Niles v. Davis, 60 id. 750. But see Roxbury Proprietors v. Huston, 37 Me. 42. 8 Tillman v. Spann, 68 Ala, 102. It is held that making the first of several payments stipulated in the contract does not make the buyer's holding adverse from that time. Clouse v. Elliott, 71 Ind. 802. See § 266, post. 4 Medlock v. Suter, 80 Ky. 101, SEC. IV.] COLOR OF TITLE. 867 C, that he did not hold adversely to B, were inadmissible in an action by C against B.! § 265. But Claim of Right must distinctly Appear. — One who enters into possession of lands under a contract to purchase is estopped from asserting a title by adverse possession unless there has been express notice to the vendor of his intention to claim adversely, or a surrender of the possession derived from the original entry before the adverse possession begins to run.? A fortiort when one buys land with borrowed money and goes into possession under agreement with the lender that the title to the land is to be conveyed to him when he repays the loan.? So where possession has been delivered, but the vendor retains the legal title under a contract to give the deed when the purchase-money shall have been fully paid, the vendee’s posses- sion will not become adverse until such payment.4. Where the parties undertook by verbal contract to rescind a deed, and the grantor thereafter remained in actual possession of part of the land, claiming title to the whole under the rescission, it was held that he was in under color of title and that his possession extended to the whole tract.6 It has been held that possession under a contract of sale cannot become adverse to the vendor while the purchaser is claiming the benefit of the contract, and making payments upon it. But the possession may be- come adverse if the occupant refuse, after a conveyance to him, to make further payments according to contract and assert to the vendor his own absolute title.” 1 Hunter v. Parsons, 2 Bail. 59. See § 267, post. So of the purchaser from a vendee under an executory contract who has not paid the purchase- money or received a conveyance. Walker v. Crawford, 70 Ala. 567. 2 Heermans v. Schmaltz, 10 Biss. (C. C.) 328; Harral v. Leverty, 50 Conn. 46. It is obvious that notice of the adverse claim may be inferred from the terms of the parol contract under which the claimant enters into possession. See § 264. 8 Estes v. Long, 71 Mo. 605. 4 Adair v. Adair, 78 Mo. 630; Potts v. Coleman, 67 Ala. 221. 5 Hughes v. Israel, 73 Mo. 538. ® Woods wv. Dille, 11 Ohio, 455. 7 Robertson » Wood, 15 Texas, 1. See also State Bank v. Smyers, 2 Strobh. 24; Niles ». Davis, 60 Miss. 750. 368 ADVERSE POSSESSION. [cHaP. VI. § 266. And Consideration must be paid.— But where one agrees to buy and another agrees to sell land, and no consider- ation is paid, and the party contracting to buy enters into possession, his possession is not adverse ; for the inference is that the entry and possession are in subordination to the title of the party contracting to sell, until the stipulated payment is made, and the case is rather of a tenancy at will, or a trust, than a disseisin.! Thus the statute of limitations of Pennsyl- vania was held to be inapplicable to an action of ejectment, brought to enforce payment of the unpaid purchase-money for lands of the early proprietaries within the manors for which warrants had issued. Indulgence was customarily given for the purchase-money in like cases, and the practice was to hold back the title; and the facts went to show that, so long as this state of things continued, the title to the land was con- sidered to be in the proprietary. The proprietary had per- mitted the purchaser to hold the land, subject to the claim for the purchase-money ; and the purchaser held under the admis- sion that the land remained liable therefor, and that the proprietary might, at any time however remote, assert his title, so far at least as to secure the purchase-money. Thus there was an understanding between the parties that the pur- chaser should not be considered as holding a possession ad- verse to the title, which he acknowledged.?, The same principle 1 Brown v. King, 5 Met. 173; Woods »v. Dille, 11 Ohio, 455; Van Blar- com v. Kip, 2 Dutch. (N.J.) 851; Taylor v. Dugger, 66 Ala. 444; Stamper v. Griffin, 20 Ga. 312; Gudger v. Barnes, 4 Heisk. 570, overruling Ray v. Goodman, 1 Sneed, 589. See Taylor, Landlord and Tenant, 8th ed., § 25, notes and cases cited. It has been held in Maryland, where a con- tract for the sale of land is proved and a uniform possession of part under it, that length of time is no bar to a decree for specific performance of the contract. Somerville v. Trueman, 4 Har. & McH. 48. See Ripley v. Yale, 18 Vt. 220; Stansbury v. Taggart, 3 McLean (C. C.), 457; Fuller v. Van Geesen, 4 Hill, 171; Appleby v. Obert, 1 Harr. (N. J.) 336. But in New York it is held that a lapse of thirty, or, it seems, of twenty years, will authorize a jury to presume the existence of a deed from the original ven- dor. Maltonner v. Dimmick, 4 Barb. 566. And in Georgia, where there was a bond for a deed on the payment of the purchase-money, the posses- sion of the purchaser was held to be adverse. Fain v. Garthright, 5 Ga. 6. ? Kirk v. Smith, 9 Wheat. 241. And see Penn v. Klyne, 1 Wash. (C. C.) 207; Hurst v. Durnell, id. 262; Con v. Penn, Peters (C. C.), 662. SEC. IV.] COLOR OF TITLE. 869 was recognized where one went into possession of land under a conditional agreement to purchase, and executed notes for purchase-money, the first. payable on or before the first day of January then next ensuing, and the second on or before the first day of January thereafter ; and it was stipulated that in case of failure to make payment in twenty days after the money became due, the land, with all its improvements, was to revert back to the vendor or his representatives ; but if payment was made, then warranty titles were to be made to the purchaser. The occupant continued in possession, cultivating and improv- ing the land, until the September after the first note became due without any intimation being given that his occupancy was contrary to the will of the vendor. It was held that the vendee was to be regarded as a tenant for the year.! § 267. Semble, may arise from Parol Gift. — It has been held that a parol gift of land creates only a tenancy at will; and that if the tenant at will make a lease for years, this is no disseisin unless the true owner elect to make it so; nor does the gift destroy the capacity of the true owner to devise.2 But the better rule is that whenever one enters upon land, claim- ing title, such possession is adverse and, if continued for twenty years, bars the owner’s right of entry and of action. “A grant, sale, or gift of land by parol,” says Shaw, C.J., “is void by the statute. But when accompanied by an actual entry and possession, it manifests the intent of the donee to enter and take as owner, and not as tenant; and it equally proves an admission on the part of the donor that the posses- sion is so taken. Such a possession is adverse. It would be 1 Fowke v. Beck, 1 Speer, 291. To the point that a possession and claim of land, under a mere executory contract of purchase, is not such an adverse possession as will bar an entry, see Wilkinson v. Nichols, 1 T. B. Mon. 46; Richardson v. Broughton, 2 Nott & McCord, 417; Town- ship Proprietors, &c., v. McFarland, 12 Mass. 324; Marvin v. Hotchkiss, 6 Cowen, 401. The possession of land by a purchaser under a bond for a deed to be delivered before a part of the purchase-money became due, is not adverse until the day appointed for the conveyance of the title. Ormond v. Martin, 1 Ala. (S. C.) 526. 2 Jackson v. Rogers, 1 Johns. Cas. 36; and see also Watson v. Tindal, 24 Ga. 494. In Jackson v. Whitbeck, 6 Cowen, 633, the question ap- pears to have been left undetermined. 24 870 ADVERSE POSSESSION. [cHaP. VI. the same if the grantee should enter under a deed not exe- cuted conformably to the statute, but which the parties, by mistake, believe good. The possession of such grantee or donee cannot in strictness be said to be held in subordination to the title of the legal owner; but the possession is taken by the ‘donee as owner, and because he claims to be owner; and the grantor or donor admits that he is owner, and yields the possession because he is owner. . . . It was enough . . . that the tenant had the actual exclusive and adverse possession of the estate more than twenty years, by which the owner, and all persons claiming under him, were barred of their entry and right of action.”! And where a parol gift of lands was void under the statute of frauds, but the donor permitted his donee to remain in undisturbed enjoyment of the lands for twenty- one years, it was held that the statute of limitations made a good title to the lands.? § 268. Must be accompanied by Occupation. —A mere color of title, without an open and notorious occupation of some part of the land, will not create a disseisin2 Thus a deed of wild land, executed and acknowledged by a grantor who had no right to the land and duly recorded in the registry of deeds, and a mere entry by the grantee without 1 Sumner v. Stevens, 6 Met. 337; see Steel v. Johnson, 4 Allen, 425; South School District v. Blakeslee, 138 Conn. 227; Clark v, Gilbert. 39 id, 98; Hunter v. Parsons, 2 Bail. 59; Outcalt v. Ludlow, 32 N. J. L. 239; Barrett v. Jefferson, 5 Del. 477; Moore v. Webb, 2 B. Mon. 282, 2 Graham v. Craig, 81* Pa. St. 459. 8 Abel v. Harris, 11 Gill &J.371. Before the case of Taylor v. Horde, 1 Burr. 60, it seems to have been the doctrine that a feoffment would create an estate of freehold in the feoffee, although none was in the feoffor at the time of the feoffment. But the decisions in subsequent cases have very much broken in upon this ancient doctrine as to the efficacy of a sim- ple conveyance to work a disseisin where the grantor is not seised. See Bates v. Norcross, 14 Pick. 224, 229; Varick v. Jackson, 2 Wend. 203. “The good sense and liberal views which dictated the decision in [Taylor] v. Horde, seemed to have finally prevailed in Westminster Hall, notwith- standing the strong opposition which that case met with from the profes- sion, The courts will no longer endure the old and exploded theory of disseisin. They now require something more than mere feoffments and leases to work in every case the absolute and perilous consequences of a disseisin in fact.’’ Kent, Com. 475. See § 287, note, ante. . re SEC. IV.] COLOR OF TITLE. 871 an open occupation manifested by fencing or otherwise, do not amount to a disseisin against the will of the true owner ; and the registry of such a deed is not constructive notice to the true owner that such conveyance has been made; but is constructive notice only to after purchasers from the same grantor. So if a person enter upon land under a deed duly registered from one having no legal title, notorious occupancy and improvement of a part is necessary to constitute a dis- seisin of the whole tract of land; because the true owner may learn the extent of the claim by an inspection of the public registry.2. An entry upon two contiguous town lots under a deed of conveyance was presumed to be in accordance there- with, so as to render the actual possession of part, by fencing, coextensive with the boundaries described in the deed.® § 269, Mixed or Opposing Possessions under. — Where there is a mixed possession under a color of title, or a possession at the same time of more persons than one, each claiming under a separate colorable title, the seisin of the estate is in him who has the better title ; for, as all cannot be seised, the pos- session follows the title. In other words, although there may be a concurrent possession, there cannot be a concurrent seisin of land; and one only being seised, the possession must be adjudged to be in him, because he has the best right.* 1 Bates v. Norcross, 14 Pick. 224; and see Coburn v. Hollis, 3 Met. 125. 2 Kennebeck Proprietors v. Laboree, 2 Me. 275; and see Robinson »v. Sweet, 3 id. 316; Little v. Megquier, 2 id. 176; and Thayer v. McLellan, 23 Me. 417. 3 Hopkins v. Robinson, 3 Watts, 205. 4 Langdon v. Potter, 3 Mass. 219; and see also Barr v. Gratz, 4 Wheat. 213; White v. Burnley, 20 How. 235; Fancher v. De Montegre, 1 Head, 40; Doe v. Butler, 3 Wend. 149; Hall v. Gittings, 2 Har. & J. 112; Cheney v. Ringold, id. 87; Hammond v. Ridgley, 5 id. 245; Davidson ». Beatty, 3 Har. & McH. 621; Hall v. Powel, 4 S. & R. 465; Mather v. Trinity Church, 3 id. 509; Burns v. Swift, 2 id. 486; Orbison v. Morrison, 1 Hawkes (N. C.), 468; Cushman v. Blanchard, 3 Me. 266; Dobbins »v. Stephens, 1 Dev. & Bat. 5. In Hall v. Powel, supra, it is said: “ There would appear to be no clearer principle of reason and justice than this, that if the rightful owner is in the actual occupancy of a part of his tract by himself or tenant, he is in the constructive and legal possession and seisin of the whole, unless he is disseised by actual occupation and dis- 372 ADVERSE POSSESSION. [cHAP. VI. Thus it was held that the claiming, under a deed, of flats and the occasional passing over the same, and mooring vessels on them, would not be considered, in law, to be such an ouster and exclusive possession as against the true proprietor, as to amount to a disseisin, while the true owner not only claimed, but actually occupied, the flats as occasion required.! So where one conveyed land in fee, with a general warranty, and a stranger at the same time was seised, in fact, of part of the same land under an older and better title, it was held that the entry of the grantee under his deed gave him seisin only of that part of which his grantor was seised.2, Where a farm was divided into two separate parts, which parts had been possessed as distinct farms for thirty years; and on survey it was ascertained that the owner of one portion had in pos- session twenty-two acres more than the other,— it was held, in ejectment brought to equalize the possessions, that the rights of the parties were controlled by the original division and the possessions under it, although the survey had been procured by the defendant.2 The owner of a tract of land sold the western half to B, by metes and bounds. The whole tract was subsequently sold under a void judgment for taxes, and C became the purchaser. C placed a tenant on the eastern half, who remained in possession seven years, claiming the whole tract by virtue of the tax sale. There was no visible open possession of the western half by C. It was held that the statute did not bar the right of B, and that the construc- possession. If this were not the law, the possession by wrong would be more favored than the rightful possessor. There are two, each in the ac- tual possession and occupation of a part of a surveyed tract, — the owner, and an intruder. Who then is in possession of the part not occupied by enclosure by either, — the man who has no right but by disseisin of a part, or he who is in. the actual occupancy of a part and the rightful owner of the whole? In this kind of mixed, constructive possession, the legal seisin is according to the title. Title draws possession to the owner. It remains until he is dispossessed, and then no further than actual dispossession by a trespasser, who cannot acquire a constructive possession, which always remains with the title.” 1 Brimmer v. Long Wharf Proprietors, 5 Pick. 131; and see Codman v. Winslow, 10 Mass. 151; Commonwealth v. Studley, id. 408. ? Cushman v, Blanchard, 3 Me. 266. 8 Livingston v. Peru Iron Co., 9 Wend. 511. SEC. V.] INTERVENING ESTATES. 373 tive possession of B was not disturbed by C’s occupation of the eastern half.1_ The occupation of pine land by annually making turpentine upon it is held to be such an actual pos- session as will oust the constructive possession of one claim- ing merely under a superior paper title.2 Where a party is in actual possession, and has a right to possession under a legal title which is not adverse, but claims the possession under another title which is adverse, his possession will not in law be deemed adverse.3 SECTION V. OF INTERVENING ESTATES. § 270. Rights of Reversioner preserved. — It was a general rule of the common law that an undisturbed and uninter- Tupted possession for sixty years created a complete title in the possessor as against every other person ;* but this is only true when the claimant or demandant not in possession might have asserted his right to enter at any time during the sixty years.5 Thus an estate for life or years may continue for upwards of sixty years, and yet the reversioner may at the expiration of such estate prosecute his right of entry by eject- ment. As in theory the remedy only, and not the right, is barred by the statute, it is possible that an intervening estate might be enjoyed for centuries and then be at last recovered. So if an estate be limited to one in tail, with remainder over to another in fee, and the tenant in tail be barred of his rem- edy by the statute, the estate of the remainder-man still sub- sists, but his right of entry cannot accrue until the failure of the issue of the tenant in tail. Thus an estate was settled 1 Stewart v. Harris, 9 Humph. (Tenn.) 714. ; 2 Bynum »v. Carter, 4 Ired. 310. Nichols v. Reynolds, 1 R. I. 80. 43 Bl. Com. 196. 5 Id; Christian’s note, 6 A tenant for life and those privy to him in estate are, in general, estopped from setting up a possessory title after twenty years’ possession, as against the remainder-man. Board »v. Board, L. R., 9 Q. B. 48; Anstee v. Nelms, 1 H. & N. 225; Paine v. Jones, L. R., 18 Eq. 320. 3T4 ADVERSE POSSESSION. [cHaP. VI. upon several persons successively in tail, remainder to A in fee; and one of the remainder-men in tail, being out of pos- session, brought an ejectment, which was held to be barred ; but the heir-at-law of A, after all the tenants in tail had died without issue, brought an ejectment within the time limited for the right of entry, reckoned from the time when his re- mainder fell into possession, and recovered the estate An entry made by one entitled to a reversion in fee-simple ex- pectant on the determination of an estate tail or to an estate tail in remainder, during the continuance of the particular estate, will not have the effect of avoiding the statute.? It has been held in Pennsylvania that notwithstanding the next heir in tail releases to the tenant in tail in possession, the statute does not run against the releasor until the death of the tenant in tail without issue.® § 271. Not prejudiced by Acts of Intervening Tenant. — The laches of the intervening tenant will not, generally, affect the right to enter of the party who becomes thereafter en- 1 Taylor ». Horde, 1 Burr. 60. 2 3 Cruise, Dig. 403; Cook v. Danvers, 7 East, 299; Dorsey v. Smith, 7 Har. & J. 345. 3 Hall v. Vandegrift, 8 Binn. 874; and see Cheseldine v. Brewer, 4 H. & McH. 487. It has been held that where the intervening tenant for life has been absent seven years and his whereabouts unknown, — though, in common cases, the presumption of law is that he is dead, — yet as there is no legal presumption as to the time of his death, the reversioner cannot avail himself of this presumption to establish the fact that the tenant for life died within twenty years before the commencement of the action, but must prove, by direct evidence, that he did die within that time. Nepean v. Knight, 2 M. & W. 911; and see French v. Rollins, 21 Me. 372. The length of time elapsed may, however, be such as to preclude the necessity of direct evidence as to the time of death. Thus it appeared that T was seised and possessed of the land, and died seised in 1746, having by his will devised the land in tail to his son F after his mother’s death. In 1780, F, being in possession, conveyed the land to G, who died intestate in 1800, leaving six children, one of whom conveyed all his interest to the lessor of the plaintiff. The time of the death of the tenant for life, the mother of F, was not proved; but it was held that her life estate must, from the length of time that had elapsed, be considered as having expired before the ejectment was brought. Stevenson v. Howard, 8 Har. & J. 554 ‘ SEC. V.] INTERVENING ESTATES. 375 titled! Thus it was held that the fine levied by a tenant for life divested the estate of the remainder-man or reversioner, leaving him only a right of entry, to be exercised either then, by reason of forfeiture, or within five years after the natural determination of the preceding estate; and that while the effect of the statute 4 Hen. VII. c. 24 was only to save to all the remainder-men their respective rights of entry for five years after their respective titles accrued, yet that a subsequent remainder-man was not to be prejudiced by the laches of an- other who had preceded him.? And this is the rule although the estate expectant be a contingent remainder. The same doctrine was applied in a case in which it was held that the right of entry of the lessor did not exist during the pendency of the estate by the curtesy.4 So if a husband, seised as ten- ant by the curtesy makes a conveyance in fee, and the grantee enters and continues in possession, claiming to own absolute- ly, such possession will be regarded as adverse to those claim- ing under the wife, only from the time of the husband’s death.6 Where the wife became entitled to the premises as heir at law, during coverture, and the husband conveyed his life-estate therein, and his grantee continued in possession for more than thirty years, the husband still living, it was held that the wife might, after the decease of the husband, make an entry and recover the land.6 Where a husband, by deed in his 13 Cruise Dig. 4038. 2 Goodright v. Forester, 8 East, 551; and see also Chandler ». Phillips, 1 Root (Conn.), 546; Dorsey v. Smith, 7 Har. & J. 845; Widdowson »v. Harrington, 1 Jac. & W. 5382; Colclough v. Hulse, 3 Barn. & C. 757; Milner v. Brightman, 10 East, 583. 8 Davis v. Dickson, 92 Pa. St. 365; Augusta v. Radcliffe, 66 Ga. 469; Tippen v. Coleman, 59 Miss. 641. See § 272, post. 4 Jackson v. Schoonmaker, 4 Johns. 390; Jackson v. Sellick, 8 id. 202. 5 Constantine v. Van Winkle, 6 Hill, 177; Jackson v. Johnson, 5 Cowen, 95. It is held in Kentucky that, where the husband aliens the wife’s land, the wife’s right of entry is not barred until twenty years after the husband’s death. Miller v. Shackelford, 8 Dana, 289; Meraman v. Cald- well, 8 B. Mon. 32. ® Mellus v. Snowman, 21 Me. 201; Stubblefield v. Menzies, 8 Sawyer (C. C.), 44. But if the defendant and her husband had been disseised during the coverture, they would have had a right to enter immediately 376 ADVERSE POSSESSION. [CHAP. VI. own name, conveyed his wife’s land in fee, and she affixed her signature and seal to the deed “in token of her relinquish- ment of all her right in the bargained premises,” it was held that her right in fee was not thereby conveyed by the deed, and that she, after the decease of her husband might main- tain a writ of entry on her own seisin, to recover the land. The general principle is that there must be a right of entry existing at the time of the bar, which can be affected; and that when the person supposed to be affected and those under whom he holds had no right of entry, right, not then existing, was not barred.? § 272. Qualifications of the Rule. — But although it is a well-established general rule that the rights of remainder-men or reversioners are not affected by the failure of the tenant in possession for life or for years to resist the acts of trespassers, yet in certain cases presumptions may arise contrary to the in- terests of the reversion. Thusina case where a boundary line in dispute was adjusted by the agreement of tenant for life, it was held that such agreement was presumptive evidence to bind the remainder-man. For, although the right of the remain- der-man may have been invaded, yet the submission, in good faith, of the tenant for life raises a presumption against those upon the disseisor, and from that time the statute would have commenced running against the husband and wife. Id.; and see Guion v. Anderson, 8 Humph. (Tenn.) 298. 1 Bruce v. Wood, 1 Met. 542. The statute 82 Hen. VIII. c. 28, which provides that no act by the husband only shall make any discontinuance of the wife’s inheritance or freehold, but that she, her heirs, &c., may lawfully enter thereupon, according to their rights, is in force as a part of the common law of Massachusetts. Id.; and see Fagan v. Walker, 5 Ired. 687. In Vermont, land devised to a woman in tail being conveyed by deed of herself and her husband, a suit commenced by the children of the wife within fifteen years after the death of both husband and wife was held to be barred. Giddings v. Smith, 15 Vt. 344. 2 May v. Hill, 5 Litt. (Ky.) 318; Gill v. Fauntleroy, 8 B. Mon. 177; Vanarsdall v. Fauntleroy, 7 id. 401. But where the purchasers held un- disturbed possession for twenty-three years after the wife’s, and eighteen years after the husband’s death, and it did not appear that the heirs labored under any disability during the time, it was held that they were barred. Patrick v. Chenault, 6 B. Mon. 815. SEC. V.] INTERVENING ESTATES. 377 who succeed him.!. There are, it was observed in the same case, many cases in which the act of the tenant for life ig competent evidence to bind the remainder-man; and of this class are cases concerning the enjoyment of easements. In cases of rights of way and of common, presumptions are sometimes created as against the owner of the land during the possession and acquiescence of the tenant, because the tenant suffers a direct and palpable injury to his own posses- sion, and yet is presumed to be on the alert to guard the rights both of himself and his landlord. And if it be proved that the landlord had actual knowledge of the injury, and he submits, he clearly will be bound.? So in a case where a right of common was in question, it was held, although this had been exercised adversely for more than twenty years, that if the user did not appear to have been generally known to all interested in opposing the right claimed, it was a question for the jury whether the enjoyment was to be referred to a right or an encroachment. In another case Dallas, C. J., said: “ When lapse of time is said to afford such a presumption, [of a grant] the inference is also drawn from accompanying facts ; and here, where there is no direct evidence whether or not the owner of the land had any knowledge of what passed, the inference to be drawn must, in a peculiar degree, depend on the nature of the accompanying facts; and the presump- tion in favor of a-grant will be more or less probable, as it may be more or less probable that those facts could not have existed without the consent of the owner of the land. The circumstances proved . . . were sufficient to leave to a jury, as circumstances from which the knowledge of the owner, and his acquiescence, on the supposition of a preceding grant, might fairly be presumed.” * In an action for the disturbance of an easement, the enjoyment may be shown not to have -been adverse by proof that the party owning the reversionary estate has not been in possession of the premises to which the easement is attached; and that he has had no knowledge of the adverse enjoyment of it. Under such circumstances, if a 1 Saunders v. Annesley, 2 Sch. & Lefr. 101. 2 Daniel v. North, 11 East, 371. 8 Dawson v. Norfolk, 1 Price, 247. 4 Gray v. Bond, 2 Brod. & B. 667. 378 ADVERSE POSSESSION. [cHapP. VI. tenant for a term of years, or for life, permits another to enjoy an easement on the estate for twenty years or upwards, and the particular estate then determines, the general rule prevails, and the alleged adverse enjoyment will not affect him who has the remainder or reversion. The principle undoubtedly is, that, as the tenant is incompetent to bind the landlord by his own positive act, so he cannot bind by his inaction or for- bearance; unless knowledge and acquiescence on the part of the landlord or remainder-man appear, or the case be such that the tenant or remainder-man himself would be particu- larly interested in resisting the encroachment.! The mere enjoyment of an easement, being the exercise of a right, can- not amount to a disseisin of the owner of the land to which the easement is annexed.? § 273. Disseisin of Intervening Tenant not to prejudice Re- mainder-man.— As the statute will not run generally against the reversioner until the termination of the intervening estate, so it is held that the disseisin of the owner of the intervening estate will not prejudice the right to enter of the reversioner. Thus a plaintiff demanded, as reversioner, a certain tract of land, and proved that his grandfather was seised of the _ premises in fee in 1770, and died seised, whereupon his estate was divided among his heirs; and that, upon such division, the premises were assigned to his grandfather’s widow as dower, and she entered and took possession, and died in 1810; and that the plaintiff, in 1811, entered into and took possession of the demanded premises. The tenant, on the other hand, proved that his grandfather had entered upon the premises nearly forty years before, and that for more than thirty years before the plaintiff’s entry, the ten- ant’s grandfather, his father, and he, the tenant, had been in the quiet possession of the premises, claiming to hold them in their own right. Upon this evidence the tenant contended that, by virtue of his possession, the plaintiff, in 1811, had no ‘right of entry. Parker, C. J., said: “The demandant’s right ? Bradbury v. Grinsell, cited in Wms. Saund. 175, note (d); Barker v. Richardson, 4 Barn. & Ad. 578. 2 Stetson v. Veazie, 11 Me. 408. SEC. V.] INTERVENING ESTATES. 879 of entry accrued on the death of the tenant for life; and he had twenty years, by the statute, to preserve his estate by entry. He entered, in fact, within one year after his title accrued ; that is, after the termination of the life-estate. It is said that [the tenant] might have entered before in conse- quence of the disseisin of the tenant for life. If he might the law imposed no obligation on him to do so. He might be utterly ignorant of the disseisin, notwithstanding the vis- ible occupation of the disseisor; for he might well suppose that the tenant had entered under a contract with her who was seised of the freehold.”! So a descent cast will not affect the reversioner’s right to enter,? although no entry has been made by the plaintiff.2 1 Wallingford v. Hear], 15 Mass. 471; and see Wells v. Prince, 9 Mass. 508; Jackson v. Johnson, 5 Cowen, 74. But where a widow, tenant for life of land settled upon her for jointure (such settlement being made in execution of a power granted to the deceased husband), married, and the second husband held for more than twenty years after her death, the possession of the second husband after the wife’s death was held a bar to an action of ejectment, brought by the party on whom the rever- sion in fee had descended during the estate for life. Parker v. Gregory, 2 Ad. & El. 14. The statute in Massachusetts and other states provides, when there has been an intermediate estate and in all other cases where the party claims by force of a remainder or reversion, that hisaright so far as it is affected by the statutory limitation, shall be deemed to have accrued when the intermediate or precedent estate would have expired by its own limitation, notwithstanding any forfeiture thereof for which he might have entered at an earlier time. Pub. Sis., c. 196, § 3, cl. 3. This statute follows in substance the Stat. 3 & 4 Wm. IV. c. 27, § 3. 2 Per Kent, C. J., in Jackson v. Schoonmaker, 4 Johns. 390; Cook v. Danvers, 7 East, 299; Stat. 3 & 4 Wm. IV. c. 27. 8 Mockbee v. Clagett, 2 H. & McHen. 1; and see Wallingford v. Hearl, supra. In the statute of descents in Connecticut, the word ‘children ”’ is substituted for ‘‘ lawful issue,’’ and other technical words of the com- mon law. Therefore, where A, being seised of land, had an illegitimate child C, and afterwards intermarried with B, by whom she had a legiti- mate child D, and died in 1778, B surviving her, and D went into pos- session of the land and had since held adversely down to the time of suit, and B died in 1815, C being then, and after, a feme covert, — it was held, in an ejectment brought by C and her husband, in 1821, for a moiety of the land, that B had an estate for life, as tenant by the curtesy; that C had no right of entry until the death of B; that C therefore was not barred of her right by the possession of D, and the plaintiff was 880 ADVERSE POSSESSION. [cHaP. V1. SECTION VI. HOW INTERRUPTED. § 274. Entry to support Ejectment: To be made Animo Clamandi.— When an action of ejectment is brought within the time limited by the statute for the exercise of the right of entry upon land, the confession of lease, entry, and ouster include all essential formalities, and proof of an actual entry is dispensed with.1. But when the action is not brought until after the time limited has expired, it is incumbent on the lessor of the plaintiff to prove an actual entry upon the land within such time.? The entry must be such as to challenge entitled to recover. Heath v. White, 2 Conn. 228. The general rule stated is the same where one is seised of a reversion expectant for a term , of years; and the person so seised is not bound, in order to entitle himself to recover in ejectment, to show that he has actually received at any time the rents reserved upon the lease for years. If the action in ejectment be brought within the time prescribed for the exercise of the right of entry, the statute is satisfied as regards the term; though, as to the rent which has become due, the rule may be different. Orrell v. Maddox, App. to Runn. on Eject., No. 1; and see §§ 304 et seg., post. It has been held that a lessor is within the section of the act of 3 and 4 Wm. IV. c. 27, § 3, which provides expressly that the statute runs from the time when remainders or reversions become estates in possession, when the rent has not been received adversely. Davy v. Oxenham, 7 Mees. & W. 131. 13 Cruise Dig. 483; 1 Saund. 319, note; Jackson v. Crysler, 1 Johns, Cas. 125; Bond v. Hopkins, 1 Sch. & Lef. 413; Hall v. Vandegrift, 3 Binn. 374; Smith v. Burtis, 9 Johns. 174; Jackson v. Cairns, 20 id. 8301; Demar- est v. Wynkoop, 3 Johns. Ch. 129; Den v. Morris, 2 Halst. 6. An action of ejectment brought by the owner against the occupant and afterwards dismissed does not interrupt the occupant’s adverse possession. Langford v. Poppe, 56 Cal. 73. 22 Cruise Dig. 501; Berrington v. Parkhurst, 18 East, 489; Cook v. Danvers, 7 id. 299; Goodright v. Cator, Doug. 477; Shearman v. Irvine, 4 Cranch, 367; Jackson v. Haviland, 18 Johns. 229; Brown »v. Porter, 10 Mass. 93; Harbaugh v. Moore, 11 Gill & J. 288; Ridgley v. Ogle, 4 Har. & McH. 128. To avoid the statute it is not necessary to bring an action; it is sufficient to make an entry upon the land. Altemas v. Campbell, 9 Watts, 28. SEC. vI.] HOW INTERRUPTED. 881 the right of the occupant; or, in other words, it must bear on the face of it an unequivocal intent to resume the actual possession.! The material point is that the entry be made with intention of making claim, otherwise it will be inef- fectual.2. Where, therefore, a party, by invitation of the ten- ant, went into a cellar to see its antiquity, this was adjudged to be no such entry as would vest the possession in the person so entering. Again, where it appeared that the party claiming to have made an entry went to the house occupied by the defendant, by agreement with him, to see it, with an expectation of taking a lease or making an arrangement or compromise, but not to take possession, it was held that this was not such an entry as would avoid the statute In an ancient case it appeared that the lessor, at the gate of the house in question, said to the tenant that he was heir to the house and land, and forbade the tenant to pay rent to the defendant for the future. It appearing that there was a court before the house appurtenant to it, the entry was held good.6 It is held that acts of riding along a public highway which passed over certain lots, and there making an inquiry about them, did not constitute an entry on the lots.6 Where a part of the land claimed is in one county and part in another, there must be a distinct entry in each county; but if the whole be in one county, an entry, with a declaration in the name of the whole, is sufficient.’ If by force or fraud the party is prevented from making an actual entry on the land claimed, his intent to make an entry declared as near. 1 Gibson, C. J., in Altemas v. Campbell, supra; Waterhouse v. Martin, Peck (Tenn.), 392. The recovery of a judgment in an action of ejectment without an entry, does not stop the running of the statute. Kennedy v. Reynolds, 27 Ala. 364. 2 See cases cited supra. An entry to purge a disseisin should be made with that intention; and such intention should be sutticiently indicated, either by the act itself or by words accompanying the act. Per Weston, J., in Robinson v. Sweet, 3 Me. 316. 3 Plowden, 92, 93. 4 Altemas v. Campbell, 9 Watts, 28. 5 Anon. Skinn., 412. ® Robinson v. Sweet, 3 Me. 316; and see Kennebeck Proprietors v. Laboree, 2 id. 275. 7 Co, Litt. § 419; Jackson v. Lunn, 3 Johns. Cas. 115. 882 ADVERSE POSSESSION. [cHAP. VI. the land as possible, is equivalent to an actual entry.! The question what facts constitute an effectual entry is for the jury, as also is the question whether in any particular case the entry is made animo clamandi2 § 275. Entry in behalf of Person entitled. — An entry by the agent of the person lawfully entitled is sufficient to avoid the statute.2 And it is held that an entry by a person unau- thorized to make it may be made effectual by a subsequent ratification. An entry by a cestud que trust in behalf of the legal estate will be effectual,® and as the entry of one of two or more joint-tenants, coparceners, or tenants in common will avoid the effect of a fine as to the others,’ such an entry will have the effect to avoid the statute of limitations.’ The remainder-man or reversioner may enter in the name of the tenant for years or for life without command or assent, and such entry will be effectual, the parties being in privity with each other; and for the same reason the tenant may in like manner enter in the name of the reversioner or remainder- man. So a guardian may, ordinarily, enter in the name of his ward.é § 276. Different Rights of, in same Person. — When separate rights of entry exist in the same person, the loss of one by lapse of time will not impair the other. And if a person acquires a second right, he is allowed a new period of twenty years within which to pursue his remedy upon it, although he has neglected to avail himself of his first right.2 A ten- 1 2 Cruise Dig. 501; Jackson v. Schoonmaker, 4 Johns. 389; Jackson v, Haviland, 13 id. 229. 2 Miller v. Shaw, 7S. & R. 129; Hooper v. Lefevre, 15 Pa. St. 517; and see Brown v. McKinney, 9 Watts, 565; Holtzapple v. Phillibaum, 4 Wash. (C. C.) 867; Dillon v. Mattox, 21 Ga. 113. 8 Ingersoll v. Lewis, 11 Pa. St. 212. 4 Hinman », Cranmer, 9 Pa. St. 40. 5 Gree v. Rolle, 1 Ld. Raym. 716. 8 Gill v. Pearson, 6 East, 173; Steph. N. P. 1394; Tidd, Pr. 1199. 7 Watson v. Gregg, 10 Watts, 296. 8 Podgers’s Case, 9 Co. 106 (a); McMasters v. Bell, 2 Penn. 180. ® 2 Cruise Dig. 498. The maxim is: Quando dua jura in una persona concurrunt, equum est ac si essent in diversis, Id. SEC. VI.] HOW INTERRUPTED. 883 ant in tail of lands held in ancient demesne, confined them by fine to three persons for their lives, and afterwards levied another fine of the reversion to the use of himself and his heirs. It was.considered that the first fine created a discon- tinuance of the estate and took away the entry of the issue in tail during the lives of the three persons to whom the fine was levied, but that the second fine did not make a dis- continuance; and therefore, although the issue in tail had neglected to bring his formedon within twenty years after the death of his ancestor, when his right first accrued, yet when the last life dropped the discontinuance was determined, and the heir acquired a new right of entry, for the pursuit of which he was to be allowed a new period of twenty years, upon the ground that, when a person has a right and sev- eral remedies, the discharge of one remedy is not the dis- charge of another. This judgment was affirmed in the House of Lords.1. So a remainder-man expectant on an es- tate for life or years, to whom a right to enter is given by the forfeiture of the tenant for life or years, is not bound to exercise his right. And if the right to enter for that cause is barred by the statute, this does not affect the right of entry afterwards arising on the death of tenant for life.? So where it was contended, since a devisee for life had never entered and a refusal to accept the devise was therefore to be presumed, that the remainder-man was bound to enter within twenty years, the court said that he might, indeed, have entered immediately on the refusal of the devisee to take possession, but that one might have different rights of entry ; and although the devisee for life refused to accept the devised estate yet the remainder-man was not obliged to avail him- self of his right so accruing, but might enter after his second right accrued by the death of the tenant for life.? ? Hunt v. Bourne, 1 Salk. 339; 2 id. 422; Bro. Parl. Cas. 66; and see Goodright v. Forester, 8 East, 551. 2 2 Cruise Dig. 501; Stevens v. Winship, 1 Pick. 318; Miller v. Ewing, 6 Cush. 34; Gwynn v. Jones, 2 Gill. & J. 173; Woodson v. Smith, 1 Heady 276; Bell v. McCawley, 29 Ga. 855; Gibson v. Jayne, 37 Miss. 165; Sal- mons v. Davis, 29 Mo. 176. 3 Wells v. Prince, 9 Mass. 508; and see Wallingford v. Hearl, 15 id. 471, as cited § 275, ante. A was tenant for life, with a power of appoint- 384 ADVERSE POSSESSION. [cHaP. VI. ment under a will. By a will attested by three witnesses, he appointed the lands to B for life, and after her death to C in fee. B was one of the witnesses to the will and the appointment to her was therefore void. On the death of the testator, the husband of B entered and held the land till his death, which was three years after the death of B. The statute, it was held, did not begin to run against C till the death of B, notwith- standing the life-estate was bad. Allen v. Blakeway, 5 C. & P. 563. Under the Statute 3 & 4 Wm. IV. ec. 27, §§ 8, 4, reversioners and re- mainder-men may enforce their claim either, first, when a forfeiture takes place, or, second, when the reversion becomes an estate in posses- sion; and, by § 6 of the same statute, the limitation continues to run, notwithstanding the death of the party and there having been no admin- istrator. If a tenant by the curtesy makes a conveyance of the estate in fee, he thereby creates a forfeiture of his estate, and the reversioner has thereupon an immediate right to enter. French v. Rollins, 21 Me. 372. But where a tenant by the curtesy of an undivided portion of an estate had abandoned the land for more than forty years, leaving it in the pos- session of another tenant in common whose occupancy was an ouster, it was held that the reversioner of such undivided portion of the estate had no right of entry upon the tenant in possession during the life of the tenant by the curtesy, his abandonment of the land being no. forfeiture of: the estate. Witham v. Perkins, 2 Me. 400. SEC. I.] GENERALLY. 385 CHAPTER VII. APPLICATION OF THE STATUTE TO REAL ACTIONS. SECTION I. GENERALLY. § 277. English Statutes concerning. — Formerly, actions brought for the recovery of land and chattels real were limited from some particular event.1 But by the statute of 82 Henry VIII. c. 2 it was enacted that such actions should be limited according to a fixed interval of antecedent time? This statute provided that where in any writ of right, or any possessory action, the demandant claimed upon his own sei- sin, this must be a seisin within thirty years back; and where, on the seisin of his ancestor, it must, in a writ of right, be upon a seisin within sixty, or, in a possessory action, within fifty years.2 Afterwards, by the statute 21 James J. c. 16, it was enacted that all writs of formedon should be brought within twenty years after the title or cause of action first descended or fallen; and that no person should make entry into lands, tenements, or hereditaments, but within twenty years after his right should first accrue. From this last enactment it followed that the period of twenty years became the limitation in all actions of eject- ment, inasmuch as the right to bring such actions is founded upon the plaintiffs right of entry. Thus the law of the limitations of real actions in general remained during the period from the 32d year of the reign of Henry VIII. to the statute of 3 and 4 William IV. c. 27. The latter statute 1 See § 10, ante. 2 3 Steph. Com. 546; § 10, ante. 3 BI. Com. 189. 25 886 REAL ACTIONS. [CHAP. VII. abolished the greater number of the ancient forms of real actions, and, in effect, established for all such actions a limi- tation of twenty years, which limitation is adopted gen- erally in the United States. But now, in England, by the Real Property Limitation Act, 87 and 88 Vict. c. 57, § 1, it is provided that no person shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims,. then within twelve years next after the time at which the right. to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same.” § 278. Droitural and Possessory Actions.— There are two requisites to a complete title to land, first, the right of pos- session, and, second, the right of property; or, as it is ex- pressed, juris et seisine conjunctio;® and real actions are designated and limited in reference to the interest in the land claimed by the demandant. These have been divided into actions drottural, or those in which the demandant sues in respect of his mere right, jus proprietatis, his possessory claim to the land having been lost; and actions posses- sory in which he sues upon his possessory right, not being reduced to the necessity of proceeding upon his mere right, Actions upon the mere right, when brought upon the demand- ant’s own seisin, are drottural; but where the demandant claims a mere right by descent, such actions are called ances- tral drottural. Actions founded upon the plaintiff’s possessory right are called possessory when brought upon the demand- ant’s own possession, and ancestral possessory when a right of possession is claimed through an ancestor.* 1 See § 290, post. 2 See Appendix. 5 Fleta, L. 3, c. 15, § 5; Taylor v. Horde, 1 Burr. 60; 3 Cruise, Dig. 483; 2 Hill. Abr. Real Property, 177; Smith v. Lorillard, 10 Johns. 339. * Roscoe on Real Actions, 2; Markal’s Case, 6 Rep. 3, b. See the vari- ous forms of writs growing out of the above divisions, enumerated, and abolished by Stat. 3 and 4 Wm. IV. § 36, in Appendix. SEC. I.] GENERALLY. 387 (a) Writ of Right. § 279. Defined: When it lies. —The writ of drottural, or writ of right, has been called the highest writ in the law, and it lies only for one who is entitled to an estate in fee-simple.! For such an estate it lies concurrently with all other real actions in which an estate may be recovered; and it also lies after the other remedies are lost, being in effect an appeal to the mere right, where judgment has already been had as to the possession, in an inferior possessory action. But in case the right of possession is lost by length of time, or by judgment against the true owner in an inferior suit, the writ of right is the only remedy that can be resorted to; and it is of so forcible a nature that it overcomes all obstacles, and removes every objection that may have arisen to obscure the title. Thus it was held that an heir might maintain a writ of right on the seisin of his ancestor at any time within thirty years after the commencement of the dis- seisin, although the ancestor had been disseised for more than twenty years at the time of his decease; for the right of property may exist without either the possession or the right of possession ;. and if the right of property remain after the possession is gone, there is no difficulty in considering it as descending upon the heir, unless it is destroyed by the statute of limitations.2 After issue has once been joined on a writ of right, the judgment following is absolutely final. A re- covery upon it therefore may be pleaded in bar of any other claim or demand to the same estate. The mise in a writ of right is considered to put in issue the whole title, including the question whether there is an outstanding title by adverse possession. Hence, if a plea, after the mise, denies the seisin of the ancestor within the time prescribed, it is bad on special demurrer.* 1 Saund. 175; 3 Bl. Com. 193; F. N. B. 1. 2 It is said to be upon a like principle that suits are maintained upon simple contracts more than six years after the cause of action accrued, if brought within six years after an acknowledgment or new promise. Mason v. Walker, 14 Me. 1638. 3 Co. Litt. 158; 3 Bl. Com. 194. 4 Ten Eyck v. Waterbury, 7 Cowen, 51: In Massachusetts the English distinc- tions between actions droitural and actions possessory have not been much regarded, there having been in the practice of 1 Preston, Abst. of Title, 298, 301. 2 Vin. Abr. Droit de Recto. 3 Viner, ubi supra. 4 Dally v. King, 1 H. Bl. 1. Devisees, before seisin, cannot prosecute a writ of right. Saunders v. Annesley, 2 Sch. & Lef. 104. 5 Green v. Liter, 8 Cranch, 229. But it has been held in Kentucky that the demandant in a writ of right must, to maintain it, prove an actual seisin. Speed v. Burford, 4 Bibb, 57. But where A, being seised of land, sold it and repurchased it, it was held that he might have a writ of right on his seisin before the sale. Gaines v, Conn, 2 J. J. Marsh. 104, 390 REAL ACTIONS. [CHaP. VII. that state no difference in respect of the nature of the seisin requisite to maintain either of them. Whoever had the title had also a seisin in deed, either by an actual entry or intend- ment of law; and the explees was considered as united to the title, so as to enable the party to maintain a writ of right. In Virginia the same rule that prevailed at common law in writs of entry and other possessory actions has been applied by statute to the writ of right, and actual seisin or possession need not be proved to maintain it.2 And in New York it was held that an entry upon the premises demanded in a writ of right need not be proved in order to maintain the action.? § 282. Demandant held to Strict Proof.— When the de- mandant in a writ of right relies on the seisin of the ancestor, he must, by tracing the descent of the title, show how he is heir, and a mistake in any step has been held to be a fatal variance. The greatest accuracy seems to have been required in England in the proceedings on writs of right, which have not been encouraged by the courts; and the instances are few in which the demandant in such a writ has been permitted to amend, even for a trivial error.* It has been said that the least slip was fatal to the demandant.> In a case of a writ of right ancestral in New York, the demandant counted on the seisin of his deceased father and issue was joined on the mere right. The tenant proved that H was in possession of the premises thirty-eight years before, and improved them as his own, and continued in possession fifteen or sixteen years, and died in possession; that his family remained in possession two or three years afterwards, when his son became of age and took the exclusive possession. From him the possession 1 Stearns on Real Actions, 365. The Revised Statutes of Massachu- setts (1836) abolished all real actions except the writ of entry, and upon this all estates of freehold may be recovered. The demandant must de- clare upon his own seisin within twenty years, but ‘need not prove an actual entry under his title, the fact of his right of entry being sufficient proof of his seisin. Pub. Sts. c. 173, §§ 1-8. 2 Lomax, Dig. 618. 5 Bradstreet v. Clarke, 12 Wend. 602. * Booth on Real Actions 111, note (a). 5 Dumsday v. Hughes, 3 Bos. & Pul. 453. SEC. I.] GENERALLY. 391 was regularly transmitted to the tenant. The demandant, on his part, proved that his father was in actual possession fifty- one years before, and improved the premises as his own; that he died about forty-one years before, in possession, leaving the demandant, his only son; that the premises were vacant two or three years, until the demandant, by his tenant, took pos- session of fifty acres by a “possession fence.” The term of limitation of an ancestral writ, as by the statute of Henry VIII., being sixty years, the court considered that the actual possession of the tenant for thirty-eight years was evidence of his right; but that this presumption of right was rebutted by the prior possession of the ancestor of the demandant, and that this existed thirteen years prior to the tenant’s possession and continued until a descent was cast in favor of the demand- ant. The assise, therefore, might well have presumed a title in the demandant, since his ancestor was the occupant and apparent owner fifty-one years before, and thirteen years before the tenant’s tortious possession commenced.? 1 Nase v. Peck, 3 Johns. Cas. 128. See Bolling v. Petersburg, 3 Rand. (Va.) 563. The tenant, in a writ of right, may give in evidence the title of a third person, for the purpose of disproving the demandant’s seisin, as the writ does not bring into controversy the right merely of the parties to the suit, and by consequence, either party is authorized to establish by evidence that the other has no right whatever in the demanded premises, or that his naked right is inferior to that set up against him. Inglis v. Sailors’ Snug Harbor, 3 Peters, 183; Green v. Watkins, 7 Wheat. 31; Ten Eyck v. Waterbury, 7 Cow. 52; Poor v. Rob- inson, 10 Mass. 131; Tyson v. Clarke, W. Black. 892; Stearns on Real Actions, 227, 228, 372. It seems that the demandant in a writ of right may be allowed to recover according to his interest proved, if this prove to be less than that which he has demanded, since the general doctrine is that the demandant in any real action is entitled to recover less than he demands in his writ, whether he demands an entirety or an aliquot part, if the variance is not taken advantage of till after verdict. ‘Inglis v. Sailors’ Snug Harbor, supra; Dewey v. Brown, 2 Pick. 52; Somes v. Skin- ner, 3 id. 52. The English rule has been that it is not admissible to insert in writs of right or writs of entry two counts for the possession of the same land. Thus if the same land were demanded on one count, on the defendant’s own seisin, and in another on the seisin of an ancestor or predecessor, the writ might be abated by plea. It was held in Massachu- setts that in such a case the plaintiff might be permitted to discontinue as to one of the counts. Boston Overseers, &c., v. Otis, 20 Pick. 38. 392 REAL ACTIONS. [cHaP. VII. § 283. Different Limitations as against Ancestor and De- mandant.— The statute 82 Henry VIII. c. 2, as has been stated, prescribed a difference in the limitation of actions for possession commenced against the ancestor, and of those com- menced against the demandant himself; the provision being that “no person shall sue any action for any lands . . . upon his own seisin above thirty years next before the teste of the original of the same writ to be brought.” The demandant, being disseised, would then be barred of his writ of right after thirty years from the time of such disseisin. And should this period elapse and the disseisee die, it would seem that the bar as to him would also be a bar as to his heirs. Otherwise, there would seem to be this absurdity, — that the heir, making out his title to lands of which his ancestor had been disseised, by showing the taking of the esplees by the ancestor within sixty years, would thus deduce title from one whose right had been wholly barred. For, thirty years having elapsed in the lifetime of the ancestor, this would give the possessor a title by a negative prescription, and the possessor would have his title, which had been good against all the world, overturned by his heir.1 1 Preston, Abst. of Title, 346, The statute of 32 Henry VIII. provided that no person should maintain a writ of right of the possession of his ancestor, or predecessor, but only within sixty years. The distinction between ancestor and predecessor is that the one term is applied to natural persons and the other to a body corporate. Co. Litt. 78, b.. So a corporation sole, as a bishop, abbot, or parson, making title upon the seisin of the predecessor, is within the intention of the statute. Brook’s Reading, 33, 45. Hence it is held that a tenant for life is not to be re- garded as a predecessor to the heir, So, in a writ of right by the heir after the determination of a life estate, the period of limitation of the writ is to be reckoned from the seisin of the ancestor, and not from the death of the tenant for life; and thus the remedy by writ of right may be lost by the tenancy for life continuing more than sixty years. The heir, however, would still be entitled to his writ of entry upon his own seisin, and might bring ejectment at any time within twenty years after the tenant’s death. Widdowson v. Harrington, 1 Jac. & W. 532. There is manifestly an incongruity in admitting a claimant to an estate by writ of right to compel another, who has been in possession of the de- manded premises for nearly sixty years, to reveal the strength of his own title, when, in the case of an ejectment, which must be brought within twenty years, possession can only be recovered on the strength of the SEC. I.] GENERALLY. 393 (b) Writs of Formedon. § 284. Different Kinds of: When they lie.— Writs of for- medon are: the formedon in the descender, the formedon in remainder, and the formedon in reverter1_ Formedon in the descender is an action ancestral drottural, which lies for the issue in tail upon a violation of that right which descends to him from his ancestor, according to the form of the gift, and is in nature of a writ of right, being the highest writ that an issue in tail can have. This is rot a common-law writ; for, at common law, all estates tail were fee-simple condi- tional; and the donee, having issue, might alien the estate or forfeit it; in which cases the issue had no remedy. But by the statute de donis conditionalibus,? the donee was deprived of this power; and it therefore became necessary that the issue should have a remedy against the alienation or dis- continuance of his ancestor, and therefore the formedon in descender was given. Formedon in remainder lies in favor of the remainder-man or his representative where a gift is made in tail or for life, remainder in tail or in fee, and the tenant in tail, or for life, alienes or is disseised, and dies with- out issue. This writ was grounded upon the equity of the claimant’s own title. And it may happen that injustice will be done by compelling one who has enjoyed the estate for nearly sixty years to ex- hibit evidence which perhaps is in existence but not within his power to procure. ‘‘ The person whose ancestor had been in possession for fifty- nine years and three quarters must begin and expose his own title; and, if the jury were not satisfied with it, very little would do for the demand- ant, because ‘the jury must give the property to somebody.’’’ Speech of Mr. Brougham on Law Reform, House of Commons, Feb. 7, 1828. 1 This division follows the statute of James. Preston, however, men- tions formedon, generally, which lies only in those cases in which the title depends on the gift. This writ, it seems, can be brought only where @ person seised in fee-simple devises his estate in fee-tail; in which case the donee claims by the gift alone, without its working any discontinu- ance, which it would do were the gift by a tenant in tail. A donee under these circumstances, supposing the donor to be disseised and ousted of the possession before his death, having neither seisin in law nor in fact, but merely a right, can haye recourse for his remedy to a writ of right only, which lies only for a recovery of a fee-simple. Preston, Abst. of Title, 343; § 279, ante. 22 St. West. c. 1. 8 Ball. Lim..7, 8. 894 REAL ACTIONS. [cHAP. VIL statute de donis conditionalibus ; for a formedon in remainder did not lie upon an estate tail at common law, because this, as stated, was a fee-simple conditional, on which no remainder could be limited, on account of the danger of creating a per- petuity, against the policy of the law.! Formedon in reverter lies in favor of the donor or his heirs where the donee in tail, or his issue, dies without issue, and a stranger abates, or they who are seised by force of the entail discontinue. This was a common-law writ; for though at common law the estate tail was a fee-simple conditional, yet the having of children was in the nature of the condition precedent ; and therefore if the donee had not issue, the donor might, in this form of action, recover against any alienation or disposition of the degree.” § 285. How limited in England.-— By the statute of limita- tions 21 James I. c. 16, it was provided that “all writs of formedon in descender, formedon in remainder, and formedon in reverter, of any manors, lands, tenements, or other here- ditaments whatever, at any time thereafter to be sued or brought, by occasion or means of any title, or cause thereafter happening, shall be sued or taken within twenty years next after the title and cause of action first descended or fallen,? and at no time after the said twenty years.”* It has never been 1 Bac. Abr. tit. Formedon; F. N. B. 217, 218; Widdowson v. Harring- ton, 1 Jac. & W. 532; Inman v. Barnes, 2 Gall. C. C. 315. 2 Td.; Stearns on Real Actions, 321. 8 The word ‘ fallen,”’ in the statute, is clearly applicable to remainders and reversions. And it has always been held that writs of formedon in remainder and reverter may be brought at any time within twenty years next after the determination of the preceding estate tail, no matter how long such estate may have continued; because, by the determination of the estate, the title and action first descended and fell. Inmanv. Barnes 2 Gall. (C. C.) 815; Cruise, Dig. 483. 4 By the statute of limitations 32 Hen. VIII. it was enacted that ‘all formedons in reverter, formedons in remainder, and scire facias upon fines of any manors, lands, tenements, or other hereditaments, shall be sued and taken within fifty years next after the title and cause of action fallen, and at no time after the said fifty years passed.’ The statute omits mention of formedon in descender; and Lord Coke observed that the act did not extend to a formedon in descender. Co. Litt. 115; and see Dyer, 278; Bendloe, 194. But since the statute of 21 James I. this omission in the statute of Hen, VIII. has become of no consequence. SEC. I.] GENERALLY. 895 determined whether, under this statute, a person claiming an estate tail by descent is barred by the neglect of the preceding person entitled to the estate tail to make an entry or to bring a writ of formedon within twenty years from the time his title accrued. The general opinion, however, is, that, by con- struction of the words “ first descended,” if a person entitled to an estate tail neglects to bring his writ within twenty years after his title first descends, he and his issue will be barred. For if the issue brings a formedon, it may be answered that the title first descended to his predecessor upwards of twenty years before! This construction is confirmed in a case in which a majority of the judges said that if a tenant in tail was disseised, and the disseisor levied a fine, and five years passed, and afterwards the tenant in tail died, the issue in tail should have a new period of five years to make his claim; for a new right came to every one of them, per formam doni2 The words of the statute of fines (4 Henry VII.), upon which this opinion was founded, are similar to those of the statute of 21 James I.; and it may fairly be presumed that the judges would give the same effect to the words “ first descended,” in the statute of James, as in the statute of fines. Abbott, 0. J., observes, that the several statutes of limitation, being all in part materia, ought to receive a uniform construction not- withstanding any slight variation of phrase, since their object and intention is the same. And in a later English case it was held that the period of twenty years within which a for- medon in descender must be brought, begins to run when the title descends to the first heir in tail, unless he is under disability.* § 286. In the United States. —It is well established in the United States, under the statute of 21 James I. and the stat- utes which have in substance re-enacted it, that a person claiming an estate tail by descent is barred by his own neg- 13 Cruise, Dig. 84. 2 Stowel v. Fouch, Plowd. 374. 8 Murray v. East India Co., 5 Barn. & Ald. 215. 4 Tolson v. Kay, 3 Brod. & B. 217; and see Cannon v. Rimington, 10 Eng. L, & E. 477. 896 REAL ACTIONS. [CHAP. VIL. lect, or the neglect of the preceding person entitled to the estate to make an entry or bring a writ of formedon within twenty years from the time his title accrued. In an action of formedon in descender, brought by the heir in tail, it was admitted that the tenant in the common recovery had afterwards, but more than forty years before, discon- tinued the estate tail by his conveyance, admitting the recov- ery to be void; and that, on his death the heir in tail, on whom the right descended, was of full age and not within any of the saving clauses in the limitation of actions of formedon. The court observed that this objection was fatal. But it was contended that each successive heir in tail was entitled to bring his action of formedon at any time within twenty years after his right accrued. The court denied this proposition to be law, and said that it had been formerly determined 1 that when the statute of limitations had once begun to run against the heir in tail no subsequent disa- bility could interrupt its progress; and after it had run twenty years no formedon could afterwards be maintained.? And in another case Story, J., said he took it to be well set- tled that if the time limited has once begun to run against any tenant in tail, it is a good bar not only against him, but also against all persons claiming in the descent, per formam dont, through him.? (c) Writ of Entry. § 287. Defined: Forms of. —A Writ of Entry at common law is a possessory remedy brought to disprove the title of the tenant or possessor by showing the unlawful means by which he entered into, or continues in, possession; and by it the tenant is commanded either to deliver the seisin of the lands, or to show cause why he will not. The principle that the plain- 1 Mosgrove v. Golden, 101 Pa. St. 605. 2 6 Com. Dig. 344 ; Baker v. Baker, 13 B. Mon. 406. 8 See § 358, ante. * Kinsey v. Heyward, 1 Ld. Raym. 434. 5 Curlewis v. Mornington, 40 Eng. L. & E. 425. The new suit was sup- ported where a defendant pleaded partnership, and the suit was abated, and within a year and a day after the abatement the plaintiff brought a second suit. Downing v. Lindsay, 2 Pa. St. 382. But in a somewhat similar case in England, the court set aside a nonsuit and allowed the plaintiff to amend, to prevent the operation of the statute. Crawford v. Cocks, 8 Eng. L. & E. 594. See also Carne v. Malins, 6 id. 568. Where an executor sued upon a promissory note made to his testator, and died before judgment and six years from the accruing of the original cause of action elapsed, and his executor brought a new action four yéars after the first executor’s death, it was held he was barred. Wilcoch v. Huggins, 2 Stra. 907. Upon the death of an assignee under the old bankrupt act of the United States, a right of action on a debt due to the bankrupt, vested in the executor of the assignee; and if an executor in such case did SEC. II.] BEGINNING OF PROCESS. 509 tiff should be entitled to a reasonable time in such an event, and that one year is a reasonable time, has been repeatedly recognized in this country, and Kent, C. J., adopted the rule as stated above, although, he said, there had been no estab- lished rule upon the subject.1_ In many of the United States it is now provided by statute, substantially, that the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit.4 § 361. Voluntary Abandonment of Action lets in the Statute. — When the abandonment of the original suit by the plaintiff is voluntary the case does not fall within the equity of the statutory exception. And it has been held, if pending an action brought by an unmarried woman the period of limita- tion expires and the action abates by her marriage, that she cannot bring a new action for the same cause.* Where an not cause himself to be made party to a suit brought in the lifetime, not in the name of the testator, and pending at his death, this was considered, to be a voluntary abandonment of the action, so as to exclude the exec- utor from the equity of the exceptions to the statute. Richards v. Mary- land Ins. Co., 8 Cranch, 84. 1 Jackson v. Horton, 3 Caines, 205. And see also Schermerhorn v. Schermerhorn, 5 Wend. 513 ; Huntington v. Brinckerhoff, 10 id. 278 ; Barker v. Millard, 16 id. 572 ; Richards v. Maryland Ins. Co., 8 Cranch, 84; Brown v. Putney, 1 Wash. (Va.) 302. It would seem, says Nelson, J., in Huntington v. Brinckerhoff, 10 Wend. 278, from the paragraph in Buller’s Nisi Prius, p. 150, that this equitable construction is only appli. cable where the plaintiff died before the expiration of the six years ; but this is, undoubtedly, an error, as will appear from the authorities. Three of the judges fell into the same error in Jackson v. Horton, ubi supra; the point not being material, and their attention not particularly turned to it; but Kent, C. J., states the law in that case with accuracy. 2 See Pub. Sts. Mass. c. 197, § 13; Comp. L. Mich. § 7158; McOmber v. Chapman, 42 Mich. 117 ; Code Tenn. art. 2755 ; Smith v. McNeal, 109 U.S. 426. Dismissal for want of jurisdiction is an abatement ‘“ in con- sequence of a defect in the form of proceeding.” Caldwell v. Harding, 1 Low (C. C.), 326. 8 Connoly v. Hammond, 58 Tex. 11 ; Flanagan v. Pearson, 61 id. 302. 4 Richards v. Maryland Ins. Co., 8 Cranch, 84. It was, however, held in an early case, if an action be brought by a feme sole within six years, and, pending the action, the six years expire, and then she marries, 510 PROCESS, PARTIES, AND PLEADING. [cwaP. Ix. action was brought within the limited time, but the plaintiff’s attorney, mistaking the time of the sitting of the court, neg- lected to enter it, it was held that a second action, brought whereby the suit abates, that she and her husband may bring a new action within the equity of the statute; though the second action could not in the nature of the thing be considered a continuance of the former writ. 2 Williams’s Saunders, 64, note. The annotator of the case states the following illustration : “As where F., and E., his wife, administratrix of J. E., her late husband, brought their bill in the King’s Bench against the defendant for money laid out by the intestate; the defendant pleaded non assumpsit infra, &c.; the plaintiffs replied that E. when a widow, to wit, on such a day, brought her original writ, and before the return she married F., and they recently afterwards exhibited their bill against the defendant; rejoinder that E. married T. J., who was alive at the time of issuing the original ; the plaintiff surrejoined and tendered an issue ; to which the defendant demurred; upon judgment given for the plaintiff in the King’s Bench without argument, a writ of error was brought in the Exchequer Chamber, where it was argued for the plaintiffs in error that the suit was abated by marriage, the voluntary act of the party; that the statute of limitations was a law of peace for the security of property, and ought not to be extended by equity ; besides a suit commenced by bill cannot be continued by original. It was insisted for the defendants in error that the new suit was brought within a reasonable time, namely, within two terms, whereas it has been holden that a year is a reasonable time. By the court: The statute has received a favorable construction ; the suit was originally brought within the six years, the new suit within two terms, and the statute does not bar the action ; it only takes away the remedy; and the judgment was affirmed.”” The annotator cites Forbes v. Middleton, referred to in Durnford’s note (E.) to Karver v. James, Willes, 259. The same authority is referred to without question or comment, by Nelson, J., in Huntington v. Brinckerhoff, 10 Wend. 278, and by Yates, J., in Harris v. Dennis, 1S. & R. 238. In neither of these cases, however, was the particular question brought before the court. In Barino v. McGee, 3 McCord, 452, the court said this was the only case found where an action which had abated by the act of the party had been held to prevent the operation of the statute. But if the real ground was that the plaintiff was administratrix, and the abatement of the suit by her marriage should not prejudice the estate on that account, it left room to infer that in any other case the bar would be effectual. It might seem that there is a clear distinction between a direct abandonment of the suit by the plaintiff’s voluntary act, and its abatement as the result of another act of the party not done in the suit, as her marriage pending the suit. In the United States, generally, the statute now preserves the right of married women to prosecute suits commenced before their marriage, SEC. II. ] BEGINNING OF PROCESS. 511 after the expiration of the limited time, was barred;! and where an attorney employed to bring a suit was unable to attend on the return day and requested another person to attend for him, who, on objection of defendant, was not allowed to act, by reason of failure to prove his authority, whereby the suit failed, this was held not to be a case within that clause of the statute which allows a new action to be brought within one year after the determination of the origi- nal suit.2 Where commissioners, appointed in 1859 to assess damages for land taken by a railway corporation, never met for that purpose and nothing was done in the matter, it was held, upon an action for damages being brought in 1880, that the running of the statute as against the plaintiff was not suspended.? § 862. So the Plaintiffs Nonsuit.—If an action be brought within the period of limitation, and after the expiration of that period the plaintiff be nonsuited, the statute of limita- tions is a good plea to another action brought for the same cause. The case is different from that of an abatement of the action by the death of one of the parties; for, although in the latter case the fresh action is new in form, it is in substance but a continuation of the old one, and the plaintiff is not in default. It was not intended that the statute should be a bar when the party has lost his trial by the act of God, if the action is renewed within a reasonable time. But in the case of a nonsuit the plaintiff has withdrawn from the trial, either voluntarily or in consequence of the opinion of the court pronounced against him, and the action afterwards commenced is, therefore, to all intents and purposes, a new one. And when the legislature excepted from the operation of the stat- ute the cases where the plaintiff had obtained a verdict or a judgment, it must have considered that actions sometimes went off on a nonsuit, and the fact that the exception was not extended to cases of nonsuit is a clear indication that it be- lieved these ought not to be excepted. Besides, it is in the 1 Packard v. Swallow, 29 Me. 458. 2 Spicer v. McQueen, 1 Mich. 252. 8 Waring v. Cheraw Railroad, 16S. C. 416. 512 PROCESS, PARTIES, AND PLEADING. [cHapP. IX. power of the plaintiff to suffer as many nonsuits as he pleases, and, by an artifice of this kind, he might be enabled to pro- tract the case, until the defendant had lost his evidence. Thus, in an action in which the defendant pleaded the stat- ute, and the plaintiff replied that within six years of the time of the cause of action he commenced a suit, and that it was carried on till a certain time, more than six years after the cause of action accrued, when, by order of court, he was non- suited ; and that afterwards he sued out the writ in the pres- ent action, and that both said suits were for the same cause ; the court held a demurrer to this replication to be good. Where an action was brought before the expiration of the time limited, and there were continuances over until after that time and then the plaintiff was nonsuited, it was held, upon a second action brought, that he was barred, in accord- ance with both the letter and spirit of the statute, and the uniform tenor of the decisions.? 1 Harris v. Dennis, 1 S. & R. 236. See Miller v. Bealer, 100 Pa. St. 583. 2 Barino v. McGee, 3 McCord, 452. If judgment be arrested or re- versed for error, the plaintiff has one year thereafter within which he may commence a suit ; but there is no such saving in case of nonsuit. Ivins v. Schooley, 8 Harr. (N. J.), 269; and see Richards v. Maryland Ins. Co., 8 Cranch, 84. Toa plea of the statute in an action on an official bond, a former suit in which there was a nonsuit cannot be set up. State v. Hawkins, 6 Ired, (N. C.) 428, The statute in North Carolina is held to apply to cases where there has been a nonsuit as well as where there has been a verdict which has been set aside, although the case of a nonsuit is not mentioned. Long v. Orrell, 18 Ired. 123. And if an action at law be commenced and continued till the time limited against such suit has expired, the plaintiff may take a nonsuit, and bring a suit in equity for the same cause of action, within one year after the nonsuit. Hall v. Davis, 8 Jones, Eq. (N. C.) 418. And in Ohio, although the statute does not give an executor, in terms, the right to commence a new action after a nonsuit, the statute having expired, yet the case is held to be within the equity of the statute. Haymaker v. Haymaker, 4 Ohio St. 272. The proviso that the plaintiff may commence a new action within a year after suffering a nonsuit means that the plaintiff and the cause of action must be the same, but the defendant may be different. Williams v. Council, 4 Jones (N.C.), 206. In Missouri, R. S, 1879 § 8239, a party who suffers @ nonsuit may have his new action within a year, whether the nonsuit be voluntary or involuntary. State v. O’Gorman, 75 Mo. 870. SEC. I1.] BEGINNING OF PROCESS. 513 § 868. Strict Application of the Rule. — This rule has, in some cases, been very strictly applied. Thus, in April, 1847, the plaintiff commenced an action on a note dated July 24, 1841. The defendant pleaded a discharge under the insolvent laws. The plaintiff was required to specify the grounds upon ‘which he should impeach the validity of the discharge, which he accordingly did. The case was continued from term to term, and at the trial the court refused to allow the plaintiff to give in evidence any facts not specified in his reasons for avoiding the discharge, whereupon the plaintiff became non- suit; and on August 19, 1849, brought another action upon the same note. It was held that the second action was barred, the court considering that it did not fall within the Massachusetts statute providing that the limitation shall not defeat a new action commenced within a year after the original action has been defeated by reason of error in matter of form.) But the dismissal of an action duly commenced within the ‘period of limitation because of an accidental omission of the clerk to enter it seasonably on the docket, is a defeat of the action for matter of form within the provision of the statute? And. so is a dismissal for want of jurisdiction.2 The court will protect parties against the consequence of mistakes of the 1 Swan v. Littlefield, 6 Cush. 417. See Pub. Sts. Mass. c. 197, § 13. 2 Allen v. Sawtelle, 7 Gray, 165. An action entered “ neither party” by reason of the plaintiff’s failure to prosecute it is not defeated for any ‘‘matter of form ’’ under the Massachusetts statute, and will not prevent the running of the statute. Cumming v. Jacobs, 130 Mass. 419. 3 Woods v. Houghton, 1 Gray, 580. The court in this case say: ‘‘The bringing of the action in the wrong county might have been pleaded in abatement, and the writ been technically abated. . . . The dismissal of the action is therefore to have the same legal effect as the abatement of the writ would have had.’’? The principle to be applied is that where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality which he can remedy or avoid by a new process, the statute shall not prevent him from so doing, provided he does it promptly, by a suit within a year. Per Shaw, C. J., in Coffin v. Cottle, 16 Pick. 386. See also Green v. United States, 18 Ct. of Cl. 93. But in Maine it is held that wrong venue is not matter of form. Donnell v. Gatchell, 38 Me. 217. A mistake as to the form of the remedy is not ‘negligence in the prosecution.” Flouncy v. Jeffersonville, 17 Ind. 169. In Crauford v. Cocks, 3 Eng. L. and E. 594, a nonsuit was taken off, and the plaintiff allowed to amend to avoid the operation of the statute. 83 514 PROCESS, PARTIES, AND PLEADING. [cHap. Ix. clerk, where they would not aid them had the mistake been their own! It is held in Louisiana that a nonsuit entered upon failure of the plaintiff to appear in court when called is not an abandonment of the suit within the meaning of the statute? § 364. Amendment of the Original Action: Effect. —It is held that the amendment of a declaration by joining a neces- sary party relates back to the beginning of the action and does not let in the bar of the statute;? and so where the amendment merely sets up the representative character of the plaintiff, as that he is an administrator. So it is held that a mere change of parties will not let in the statute.® The principle is that where the amendment does not change the cause of action nor deprive the defendant of any defence which he had to the original suit, the plaintiff’s right shall be preserved.© And it has been held that if the plaintiffs cause of action, introduced by the amendment, be not entirely new, the plaintiff’s right to sue shall be saved.’ In New Jersey it is held that the allowance of any amendment, within the au- thority of the court to allow, is not the beginning of a new action so as to admit the plea of the statute, this not having attached as to the original action.’ (b) In Suits in Equity. § 365. Commenced by Filing the Bill.—In the English Court of Chancery, previous to the enactment of the statute 1 Nazer v. Wade, 1 Best, 728. 2 Devalcourt v. Dillon, 12 La. Ann. 672. ® Augusta Mfg. Co. v. Vertrees, 4 Lea, 79; Roberson v. McTlhenny, 59 Tex. 615; Martin v. Young, 85 N. C. 156. But as to the effect of the amendment upon the right of a new party plaintiff introduced by the amendment, see Bower v. Thomas, 69 Ga. 47. 4 Tifft v. Towns, 63 Ga. 237; Rutherford v. Hobbs, id. 243. 5 Thomas v. Fame Ins. Co., 108 Ill. 91. ® Nashville, Chattanooga, and St. Louis R. R. v. Foster, 10 Lea, 351; North Chicago Rolling Mill Co. v. Monka, 107 Il. 340. See Johnston v. District of Columbia, 1 Mackey, 427, as cited post, § 376. 7 Mohr v. Lemle, 69 Ala. 180. 8 Guild v. Parker, 48 N. J. L. 480. SEC. II.] BEGINNING OF PROCESS. 515 of 4 Anne, c. 16, § 22, it was not necessary to file the com- plainant’s bill before the issuing and service of the subpoena upon the defendant; and the suit, as against the defendant, was considered as commenced at the date of the teste of the subpeena, as in the case of suits at law commenced by original writs. At the present day, the filing of a bill, taking out the subpeena, and making an attempt in good faith to serve it, is the commencement of a suit in equity as against the defend- ant, so as to prevent the operation of the statute if the suit be afterwards prosecuted with due diligence.? And it would seem that the filing of the bill is the commencement of the suit, although the subpcena be not taken out until after the period of limitation has expired.2 But an amended bill mak- ing new parties has no relation to the commencement of the suit for the purposes of the statute, so far as such new parties are concerned, for until they are made parties to the bill the suit cannot be considered as having been commenced against them. “It would be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice, and when a final decree in the case could not have prejudiced their rights.”* So it is held, generally, that if during the pendency of a suit in equity any new matter or claim is set up by the complainant, the defendant may insist 1 Hayden v. Bucklin, 9 Paige, 512; Pigott v. Nower, 3 Swanst. 530. 2 Hayden v. Bucklin, supra; Bisbee v. Evans, 17 Fed. Rep. 474; Webb ». Pell, 1 Paige, 564. Where one was out of the jurisdiction and the bill prayed process against him when he should return, it was con- sidered that the statute was suspended as against him, although he had not been served with process or appeared in the suit. Hele v. Bexler, 20 Beav. 127. 8 Morris v. Ellis, 7 Jur. 413. See also Purcell v. Blennerhasset, 3 J. & L. 24. Where a bill in equity was filed in 1819, and the plaintiff hav- ing died, in 1825, a bill of revivor was filed in 1828, and the defendant continuing absent, and no appearance being entered, and one of the de- fendants having died in 1835, a bill of revivor was filed in 1838, and, the remaining defendant being still out of the jurisdiction of the court, ser- vice of the subpoena was then effected under 2 Wm. IV. c. 83, — it was held that the bill of 1828 prevented the bar of the statute, with an intimation that the bill of 1819 would have done the same. Forster v. Thompson, 2 Con. & L. 568. 4 Miller v. McIntyre, 6 Peters, 61. 516 PROCESS, PARTIES, AND PLEADING. . [CHAP. IX. upon the benefit of the statute until the time when the new claim is presented,! even although such new matter be founded upon papers previously made exhibits in the case.? § 866. Bill Filed by One in behalf of the Others. — It is held that if a bill be filed by one creditor, as plaintiff, in behalf of himself and others, this will prevent the statute from running against any of the creditors who finally come in under the decree, since every creditor has, after the filing of such a bill, an inchoate interest in the suit, to the extent of its being con- sidered as a demand against the defendant and to prevent himself from being shut out if the plaintiff do not obtain a decree within the six years.2 And the same rule was held in a case where suit was brought by trustees for certain bond- holders in favor of such bondholders.t It has been considered that the fact that such a bill was not, in form, filed in behalf of other creditors as well as the plaintiff, was not material as affecting the rights of such other creditors.5 But a creditor who comes in late under a decree and excuses his delay on the plea of ignorance of the existence of the suit cannot take advantage of the filing of the bill so as to avoid the limita- tion® And a suit may be repudiated by a creditor so as to preclude him from taking advantage of it.’ § 367. Suits brought in Equity by Mistake: Plaintiffs Right not saved: Injunctions. — It was held in an early case that if one sued in chancery, and pending the suit there the statute attached on his demand and his bill was afterwards dismissed as being a matter properly determinable at law, his right of 1 Dudley v. Price, 10 B. Mon. 84. ? Christmas v. Mitchell, 8 Ired. Eq. 535. 5 Sterndale v. Hawkinson, 1 Sim. 393. But it is said in Greaves, In re, Bray v. Topfield, 18 Ch. D. 551, 553, referring to Sterndale v. Haw- kinson, that ‘creditors had better not rely upon that decision for the future.” 4 Chickering, In re, 56 Vt. 82. 5 O’Kelly v. Bodkin, 2 Ir. Eq. 861; and see Watson v. Birch, 15 Sim. 523. ® Berrington v, Evans, 3 Younge & C. 390. * 7 Hutching v. O'Sullivan, 11 Ir. Eq. 443. SEC. II.] BEGINNING OF PROCESS. 517 action at law would be preserved.1 But in a subsequent case, where a bill had been depending in chancery for six years, Lord Hardwicke held that the bill was not such a demand as to take the debt out of the statute. And in a recent case Malius, V. C., said: “ Commencing the suit in another court is in my opinion only a mode of keeping alive the debt in that particular action. Jam therefore of opinion that though in some sense the debt is kept alive by the writ, it is only kept alive for the purpose of being recovered in that particular court in which the writ was issued.”® So, in Virginia, it has been held that if a bill in chancery be dismissed on the ground that the plaintiff's claim is exclusively cognizable at law, the pendency of such suit in chancery cannot be pleaded to prevent the limitation from being a bar to his subsequent recovery at law. In New York, before the enactment of the revised statutes, the time during which a plaintiff was stayed by an injunction from prosecuting his suit at law could not be replied to a plea of the statute of limitations, and the court said they had met with no case in which it had been held that an injunction out of chancery would suspend the running of the statute. The remedy of a party stayed in that state, previous to the revision, was by an application to chan- cery to restrain the defendant from pleading the statute® But in Mississippi it was held that the operation of the stat- ute was suspended during the pendency of an injunction against a creditor whereby he was prevented from foreclosing his trust deed.® 1 Anon., 1 Vern. 74. 2 Dawson v. Dawson, 1 Atk. 1. 8 Manby v. Manby, 3 Ch. D. 101. 4 Gray v. Berryman, 2 Munf. 181; and see Hanks, Ex parte, 1 Cheves, Ch. (S. C.) 208. 5 Barker v. Millard, 16 Wend. 572. In Stafford v, Bryan, 1 Paige, 239, the suit was not commenced until nearly eight years after the date of the acknowledgment and promise; and it appearing that the com- plainant had in the meantime commenced two suits in the Supreme Court for the same cause, one of which was discontinued and in the other of which he was nonsuited because he could not prove facts suffi- cient to take the case out of the statute, it was held by the chancellor that neither of those suits could avail anything in the plaintiff’s behalf. 6 Tishimingo Savings Bank v. Buchanan, 60 Miss. 496. See Terrell v. Ingersoll, 10 Lea (Tenn.), 77; Biggs v. Lexington Railroad Co., 79 518 PROCESS, PARTIES, AND PLEADING. [cHaP. IX. SECTION IIL OF THE PARTIES, § 368. Limitation does not run until there is a Plaintiff quali- fied to sue.— The expression “cause of action” within the intent of the statutes of limitations implies not only that a right of action exists, but also that there is some person in existence qualified to institute process to enforce the right. Where there is no person to sue no laches can be imputed, and the application of the statute in such a case would be unreasonable and unjust.2 Thus at common law where a Ky. 470. In malicious prosecution for obtaining an injunction brought more than two years after it was dissolved, but less than two years after final judgment in the case, it was held that the cause of action was barred; but Sharpstein, J., based his judgment upon the ground of want of malice, and was of opinion that as a general rule the statute would run only from the dissolution of the injunction. Anderson v. Coleman, 56 Cal. 124. Where formal but defective proof of a mortgage debt offered in bank- ruptcy before it was barred was not objected to, but was afterwards withdrawn to be enforced in the state court by leave of court and by agreement with the debtor, it was held that the statute of limitations, which had run when the suit was begun there, could not be pleaded. Wofford v. Unger, 53 Texas, 634. 1 Ayraud v. Babin, 19 Martin N. S. (La.) 47 ; Morgan v. Robinson, 12 Mart. O. S. (La.) 76. The maxim of the civil law on this subject is : con- tra non valentem agere non currit praescriptio. Pothier, Traité des Obliga- tions, 645. ? Richards ». Maryland Inst. 8 Cranch, 84. In Leasure v. Mahoning Township, 8 Watts, 551, the plaintiff having been the supervisor of the township for the years 1819 and 1821, his accounts were settled by the auditors each year, and a balance was found to be due to the plaintiff, for which the suit was brought, by authority of a special act of assembly passed June 16, 1836. On the trial the plaintiff gave in evidence the settlements of his accounts, and then offered in evidence another settle- ment of them by the auditors for the year 1831. This was objected to, on the ground that the auditors of 1831 had no authority to examine or allow the accounts for the years 1819 and 1821, and the court below re- jected the offer, and instructed the jury that the statute of limitations was a bar to the plaintiff’s recovery. The judgment was reversed and the court said : ‘It does not, and it never was intended that it [the statute] should apply to claims for the recovery of which the party entitled thereto SEC. III. ] OF THE PARTIES. 519 debt to a married woman having a separate estate is incurred by her husband, as by the loan of money by the wife to the husband, the limitation does not begin to run to bar the debt until the death of the husband, since, on account of the legal unity of the husband and wife, the latter cannot sue the for- mer.! So, where an administrator had returned his account and divided the estate in good faith, it was held that the stat- ute of limitations began to run in his favor from the time of the division, against all the distributees except one who was a feme covert. § 369. Executors and Administrators: how Limitation runs against: English Rule.— The rule on this subject has been oftenest applied in cases where rights of suit have accrued to persons who thereafter died, the right of suit thereupon becoming vested in an executor or administrator ; and in such cases the courts have very generally followed the principles laid down in Murray v. Kast India Company. In that case the action was brought by an administrator on several bills of exchange accepted by the defendants, who pleaded that the cause of action did not accrue within six years before the commencement of the action. The bills were made payable to H., and were accepted after his death, being presented through an unauthorized channel and before administration was granted. The date of the acceptance of the bills and the day named for payment were each more than six years before the commencement of the suit, but the granting of the admin- istration was within the six years. Thus the question was could not maintain an action. The statute does not extinguish the debt or claim, it only forms a bar to the remedy of the party to recover it by action: but it is perfectly clear that if the right to maintain an action for it were never vested in him, the statute can be no bar to it, because it would be contrary to reason to hold that the statute operated upon and took that away which never existed, or, in other words, deprived the party of a right which he never had, until the act of 1836 was passed for the special purpose of investing him with such right. Since he has thus been enabled to bring and maintain his action, no time appears to have been lost on his part, nor room left for the statute to intervene.” 1 Towers v. Hagner, 3 Whart. Penn. 48. See Muus v. Muus, 29 Minn. 115. 2 Payne v. Harris, 3 Strobh. Eq. 39. 8 5 Barn. & Ald. 204. 520 PROCESS, PARTIES, AND PLEADING. [cHaP. IX. whether the time of limitation began to run from the date of the defendants’ acceptance, or from the day of payment, at both of which times there was no person in existence who could exercise the right of action arising from the acceptance and non-payment; or from the date of the administration, by the granting of which a person was brought into existence who might sue. The court was of opinion that the time of limitation did not begin to run until the grant of the admin- istration. Independently of authority, it was considered that a cause of action could not exist unless there be a person in existence capable of suing; and that the object of the statute was both to limit the time of entry upon lands and of bring- ing suits to persons in esse capable of entering or of suing. So a suit in equity, for an account of rents and profits of real estate having become abated by the plaintiffs death, after answer but before the decree, the plaintiff's personal repre- sentatives, more than six years afterwards, filed a bill of re- vivor to which the personal representatives of the original defendant, who had also died, pleaded the statute of limita- tions but did not aver in his plea that six years had elapsed since representation had been taken out by the original plain- tiff. The plea was overruled upon the principle laid down in Murray v. East India Company.} 1 Perry v. Jenkins, 1 Myl. & C. 118. In Murray v. East India Co. the court referred to the case of Cary v. Stephenson, 2 Salk. 421, and to Stanford’s case (cited Cro. Jac. 61). The latter case arose under the statute of fines, 4 Hen. VII. A term of years was granted in remainder, expectant on another existing term; before the expiration of the first term, the grantee died; at the expiration of the first term, the lessor entered, and levied a fine before administration granted; the five years passed, administration was granted, and it was resolved that the admin- istrator should have five years, for none had a right of entry before. Cary v. Stephenson was an action of assumpsit for money had and re- ceived, brought against one who had received money belonging to the estate of the intestate, after his death and before administration granted, the receipt being more than six years before the action, but the grant of the administration within six years. The opinion of the court was that the time of limitation did not begin to run until the grant of the admin- istration. Murray v. East India Company was relied upon by counsel in the Scotch case Ferguson v. Fyffe, 8 Cl. & Fin. 121, in the House of Lords, and it was determined that, where a creditor of a firm in India SEC. III.] OF THE PARTIES. 521 § 870. Like Rule applied in the United States. — The prin- ciple of Murray v. East India Company has been generally adopted in the United States! and has been applied to a va- riety of cases. Thus if a surety pays the debt of his principal after the death of the latter, no administration having been taken upon the principal’s estate, the statute does not begin to run until administration is obtained.2 So an action brought by one appointed administrator of the estate of an inhabitant of another state, within twenty years from the time of the death of such inhabitant, is not barred by the statute of limitations if the action be commenced within the time limited for the beginning of suits by administrators, although a previous administrator had been appointed in the state of which the deceased was an inhabitant, —such administrator previously ‘appointed having no right to sue out of his own state? If a claim be sold by an administrator under an order of court, invalid for want of jurisdiction, the statute, as against the purchaser, does not begin to run until the appointment of a succeeding administrator. Upon the application of the gen- died there before his right of action was barred by lapse of time, and his personal representative in Scotland brought an action there against a partner of the firm twenty-three years after the creditor’s death, the English statute of limitations did not take effect, the action having been brought within six years after English probate or letters of administra- tion were taken out to the deceased creditor. 1 Sturges v. Sherwood, 15 Conn. 149; Hansford v. Elliott, 9 Leigh, 79; Ruff v. Bull, 7 Harr. & J. 14; Fishwick v. Sewell, 4 id. 893; Mars- teller v. Marsteller, 93 Pa. St. 850; Nelson v. Herkel, 30 Kan. 456; Toby v. Allen, 3 id. 399; Grubb v. Clayton, 2 Hayw. (N. C.) 378; Wenman v. Mohawk Ins. Co., 18 Wend. 267; Geiger v. Brown, 4 McCord, 423; Witt v. Elmore, 2 Bailey, 595. 2 Levering v. Rittenhouse, 4 Whart. 180; King v. Aughtry, 3 Strobh. Eq. 149; Conyers v. Keenan, 1 Kelley (Ga.), 379; Bucklin v. Ford, 5 Barb. 393; Lewis v. Broadwell, 3 McLean (C. C.), 568; Polk v. Allen, 19 Mo. 467; Wood v. Ford, 29 Miss. 57; Briggs v. Thomas, 32 Vt. 176; Jollitt v. Pitt, 2 Vern. 694; Burdick v. Carrick, L. R. 5 Ch. 241. The statute runs from the appointment of a special adntinistrator. Underhill v. Mobile Fire Dept. Ins. Co., 67 Ala. 45. 8 Gallup v. Gallup, 11 Met. 445; Hobart v. Conn. Turnpike Co., 15 Conn, 145; Lee v. Gause, 2 Ired. 440. 4 Wyatt v. Rambo, 29 Ala. 510. In many of the states it is provided by statute that the limitation shall be suspended upon the death of a parti. 522 PROCESS, PARTIES, AND PLEADING. — [CHAP. IX. eral principle, it is held that adverse possession of personal property of the deceased person begins to run only from the appointment of the administrator; for the statute will not run until there is some person in being who is competent to sue or be sued.” § 871. Rule applied to Special Cases.— In Georgia, the court held that when one of the partners dies during the existence of the partnership, the statute does not begin to run in favor of the surviving partner until an administrator on the estate of the deceased partner is appointed. The court, in this case, admitted the general proposition that when the statute once begins to run no subsequent disability will stop it,2 but held that no cause or right of action had accrued in the lifetime of the intestate against his co-partner, there being no pretence of any misunderstanding between them.* So where it appeared that there could have been no final settlement of the estate and interests of an intestate until after the death of his widow, at. which time certain reversionary interests first became available to his administrator, it was held that the statute had not run so as to bar the right of the administrator to sue.® § 872. Cause of Action accruing in Lifetime of Decedent: Qualification and Notice, ete.— But it is an established rule that if the statute has once begun to run within the lifetime of the testator or intestate, it does not cease running during the period which may elapse between his death and the ap- pointment and qualification of his personal representative. For it would be absurd to hold that if the debtor died only one day before the six years had elapsed the creditor should have another period of six years within which to enforce his demand. But where the testator directed by his will that a 1 Wood v. Ford, 29 Miss. 57; Bucklin v. Ford, 5 Barb. 398; Davis v. Gurr, 6 N. Y. 124; Thurman »v. Shelton, 10 Yerg. 383. 2 Grassier v. Grano, 1 Bibb (Ky.), 257; Ruff v. Bull, 7 Harr. & J. 14. 8 See § 372. 4 Gardner v. Cummings, 1 Geo. Dec. 1. 5 McNair v. Dodge, 7 Mo. 404. ® Rhodes v. Smethurst, 4 M. & W. 42; Freake v. Cranefeldt, 8 Myl. & C. 499; Boatwright v. Boatwright, L. R. 17 Eq. 71; Penny v. Brice, 18 SEC. II.] OF THE PARTIES. 523 ® debt to which he might have pleaded the statute of limitations in bar should not be barred but paid by his executors, it was held that the statute began again to run from the time the executors qualified! Under a statute which provided that actions against administrators should be brought within three years from the time of granting letters, it was held that where the cause of action accrued after the granting of letters, the action might be brought any time within three years after the cause of action accrued.?, The statute does not apply where the administrator has not given notice that letters of adminis- tration have been granted. And a plea of the statute by an administrator should aver that notice has been given.* But it was held in Alabama that the statute begins to run from the date of the letters testamentary and not from the date of publication of notice.6 The statute continues to run, notwith- standing the death of the administrator,® or his removal from the state.’ Where one declines to accept a trusteeship under C. B. N. S. 393; McCollough v. Speed, 3 McCord, 455; Frost v. Frost, 4 Edw. Ch. 733; Abbott v. McElroy, 10 S. & M. 100; MeKinzie v. Hill, 51 Mo. 303; Bolt v. Dawkins, 16 S. C. 198; Lewis v. Ford, 67 Ala. 148; Daniel v. Day, 51 Ala. 481; Word v. West, 38 Ark. 243; Bozeman v. Browning, 31 Ark. 864; Crosby v. Dowd, 61 Cal. 557; Eagan v. Kergill, 1 Demarest (N. Y.), 464; Geigers v. Brown, 4 McCord (S. C.), 423; Rogers v. Brown, 61 Mo. 187; Meeks v. Vassault, 8 Sawyer (C. C.), 206; Swearingen v. Robertson, 89 Wis. 462; Weitman v. Thiot, 64 Ga. 11; Nelson v. Herkel, 80 Kan. 456; Pickett v. Hobdy, 60 Ala. 609. By the law of France, the limitation begins to run on the death of the intestate without reference to the appointment of an administrator; and it is said that parties having claims against the estate must see to it that an administrator is appointed so that they may sue if need be. So, if the estate holds claims against third persons, it is no less the duty of creditors to see to the appointment of an administrator, who may sue; and if anybody is to suffer by negligence or delay in this respect, it shall be the creditor, and not the third person, who has no power to procure the appointment of an administrator. Code Civil, Art. 2958, 2259. Dalloz, Dict. de Jur. tit. Prescription Civile, 622, 623. 1 Smith v. Gillette, 59 Tex. 86. 2 Finney v. State, 9 Mo. 227. 3 Wiggins v. Lovering, id. 259. 4 Wiggins v. Lovering, supra; Bosworth v. Smith, 9 R. I. 67. 5 Cawthorne v. Weisinger, 6 Ala. 714. 6 Pipkin v. Hewlett, 17 Ala. 219; Mills v. Glover, 22 Ga. 319. 7 Lowe v, Jones, 15 Ala. 545. 524 PROCESS, PARTIES, AND PLEADING. [cHAP. IX. e a will, the statute does not begin to run until the appointment of a trustee by the proper authority! The issuing of tem- porary letters of administration does not suspend the operation of the statute.2 In a creditor’s suit for the administration of assets, the statute of limitations ceases to run against all debts of the debtor from the date of a decree for an account. Limitation does not begin to run, when a statutory right of action is given to an administrator or executor of a person killed by the negligence of a common carrier, until such administrator or executor is appointed.* § 373. Limitation inoperative if no Party in being liable to Suit.— There must not only be a person qualified to sue, but a person capable of being sued. Thus where the plaintiff in error was sued in the court below as surety for the marshal of the district of Louisiana, who, by order of the district court had sold a vessel and cargo libelled by the defendants in error, which vessel and cargo, or the proceeds thereof, were by decree ordered to be restored to the libellants, and the marshal had failed to pay over part of the proceeds, — the court held, on an appeal, that the defendant in error had no right to demand of the marshal the proceeds of the sales, or to sue for the recovery thereof, until after the affirmance of the decree ; that the right of action was suspended during the pendency of the appeal, and during such suspension the statute did not run against the defendant in error.’ § 874. Periods of Statutory Exemption excluded in Computa- tion: Pendency of Appeals, etc.— As a general rule, when a temporary incapacity to sue grows out of some particular provision of a statute, the time during which such temporary 1 Dunning v. Ocean National Bank, 6 Lan. 296. 2 Scott v. Atwell, 63 Ga. 764. 8 Ewing v. Ferguson, 33 Gratt. 548. 4 Andrew v. Hartford R. R. Co., 84 Conn. 57. 5 Montgomery v. Hernandez, 12 Wheat. 129; and see Hernandez »v. Montgomery, 14 Mart. (La. n. s.) 422; Cornwell v. Morris, 5 Harr. 299, The claim of an executor or administrator against the estate is not barred, as neither can sue himself. Spencer v. Spencer, 4 Md. Ch. 456; Brown v. Stewart, id. 868. But see Hoch’s Appeal, 21 Pa. St. 280; Wharton v. Marberry, 3 Sneed, 603; Sims v. Sims, 30 Miss. 338, SEC. IV. ] OF PLEADING AT LAW. 525 disability continues should be excluded from the computation. The statute limiting actions against executors and adminis- trators in Massachusetts does not begin to run against persons having a right to appeal from the decree granting administration, until the right of appeal is lost or the decree becomes absolute. The consequence of a different construc- tion would be that the rights of all parties might as it were be in a state of suspended animation, and yet a limitation which they could not avert be running at the same time. So it is considered that the bar let in by the grant of probate or administration is suspended in its operation by the appeal ;, and that it revives only when the administration is set in motion again by the determination of the appellate court.t In Mississippi, it has been held that an act allowing nine months after publication of notice of administration before suit can be brought against the administrator has the effect to suspend the general act of limitations during that period, and thereby to leave the holder of a promissory note six years within which to sue, besides the nine months within which he is restrained from suing.? In many of the states a certain period after the death of the decedent is by statute to be de- ducted from the running time. If by the provisions of a statute the debtor cannot be sued, the statute of limitations ceases to run against the creditors.® SECTION IV. OF PLEADING AT LAW. (a) Pleas. § 375. Statute to be Pleaded: Who may Plead it.— It was held in the early cases, since the statute of limitations prohibited the bringing of actions after the period of time 1 Trecothick v. Austin, 4 Mason (C. C.), 14. 2 Dowell v. Webber, 2 8. & M. 452; Abbott v. McElroy, 10 id. 100; Tarver v. Cowart, 5 Ga. 66; Lawton v. Bowman, 2 Strobh. 190; Lewis v. Broadwell, 3 McLean, 568. 3 Planter’s Bank v. Bank of Alexandria, 10 Gill & J. 346. 526 PROCESS, PARTIES, AND PLEADING. _— [ CHAP. 1X. which would create the limitation had elapsed, that the courts would take judicial notice of the statute, and that it need not be pleaded.!_ But this doctrine was soon seen to be untenable, since the plaintiff in any case might well be within some of the exceptions mentioned in. the statute; and it is now held generally that the defendant must plead the statute in order to take the benefit of it.2 But where the statute establishes a positive prescription, and so extinguishes the plaintiffs 1 Brown v. Hancock, Cro. Car. 115. Afterwards the judges were equally divided in opinion upon the question, Trankersley v. Robinson, Cro. Car. 163. 2 Style v. Finch, Cro. Car. 8381; Hawkings v. Billhead, id. 404. Gould v, Johnson, 2 Lord Raym. 838; Puckle v. Moore, 1 Ventris, 191; Pearsall v. Dwight, 2 Mass. 84; Brickett v. Davis, 21 Pick. 404; Jackson v. Var- ick, 2 Wend. 294; Chambers v. Chalmers, 4 Gill & J. 349; Merryman v. State, 5 Harr. & J. 425; Robbins v. Harvey, 5 Conn. 335; Kirkman v. Siboni, 4 M. & W. 839; Lewis v. Alexander, 51 Tex. 578; Hines v. Potts, 56 Miss. 346 ; Capen v. Woodrow, 51 Vt. 106; Davenport v. Short, 17 Minn. 24; Borden v. Murphy, 78 Ill. 81; Heath v. Page, 48 Pa. St. 180; Devor ». Rerick, 87 Ind. 337; Parker v. Irvin, 47 Ga. 405; Pegram v. Stoltz, 67 N. C. 144. And the defendant need not negative the exceptions; but the plaintiff must reply them. Ford v. Babcock, 2 Sandf. (N. Y.) 518; Walker v. Bank of Miss. 2 Eng. (Ark.) 500. There is the same reason for pleading the statute in debt as in assumpsit; though the contrary doctrine was formerly held. For if the statute be not pleaded, the plaintiff is equally liable to be surprised, and therefore as unprepared, in one action as in the other, to set up the replications of infancy, coverture, etc., to take the case out of the statute. If the defendant intends to insist upon the statute, he should plead it to prevent surprise, and if he do not do so it is presumed he intends to waive it. Pearsall v. Dwight, 2 Mass. 87; Sturges v. Burton, 2 Ohio St. 215. An answer alleging *‘ that more than ten years have elapsed before the commencement of this action,’ was supported as sufficiently setting up the statute. Crawford v. McLellan, 87 N. C. 169. A plea of payment is not such notice of a set off as will stop the run- ning of the statute as to the items of the set-off, but the defendant must either plead the set-off, or give notice of it as special matter. Wisecarver v. Kincaid, 83 Pa. St. 100. Where in a suit on a promissory note sixteen years old, and bearing interest, the plaintiff averred that the defendant did not pay the same and interest, or any part thereof, except some inter- est within six years, and the defendant pleaded the statute, — it was held on demurrer that the statute was a good bar, for the allegation of the payment of the interest introduced in the declaration was premature, and the payment was but evidence to show that, prima facie, there existed a cause of action. Hollis v. Palmer, 3 Scott, C. B, 295; 2 Bing. N. C. 718. SEC. IV.] OF PLEADING AT LAW. 527 right, it is a conclusive bar, whether pleaded in form or not. And it is held, where the bar of the statute prima facie exists, that the burden is on the plaintiff to prove the facts necessary to remove it.2 The plea of the statute is, generally, a personal privilege, but grantees, mortgagees, or other persons standing in the place of the party having the personal privilege, or in- terested in the claim against which the statute is to be set up, may interpose the plea.’ So a plaintiff grantee may reply by setting up an exception of which his grantor might have availed himself,‘ and an attaching creditor who has obtained leave to defend the suit of a prior attaching creditor may set up the statute of limitations as a defence.® § 376. Statute set up by Amendment: Demurrer.— The statute being a strict defence, it was held, under the rules of common-law pleading, that if the party omitted to plead it, the court would not permit him to amend by setting up the plea. The only exception to this rule was in cases where the 1 Caldwell v. McFarland, 11 Lea (Tenn.), 463; Bomar v. Hagler, 7 id. 85. In the latter case it is said that when the statute cuts off the right, or vests the title absolutely in the defendant without exceptions or qual- ifications, it need not be pleaded, for it cannot be answered. Again, it is said that the statute of limitations should be pleaded directly, as that the cause of action did not accrue within the prescribed period, but an allegation that neither the plaintiff nor his grantor was seized or pos- sessed of the premises during that period is sufficient to admit proof of the defendant’s adverse possession. Zeilin v. Rogers, 21 Fed. Rep. 103. The plea should always refer to the commencement of the proceedings alleged to be barred. Lincoln v. Thompson, 75 Mo. 618. 2 Apperson v. Pattison, id. 484. 3 Ferguson v. Brome, 1 Bradf. 10; Skidmore v. Romaine, 2 id. 122; Larthet v. Hogan, 1 La. Ann. 330; Dawson v. Callaway, 18 Ga. 573; Ford v. Morris, 18 Cal. 482. But see Briggs v. Wilson, 89 Eng. L. & E. 62; Elkinton v, Newman, 20 Pa. St. 281; Biddle v. Moore, 3 Pa. St. 161. 4 Ford v. Langel, 4 Ohio St. 464. 5 Sawyer v. Sawyer, 74 Me. 579. 6 Jackson v. Varick, 2 Wend. 294. It was held that the plea of the statute could not be amended, though the amended plea was filed before the rule day had expired. But if a plaintiff amended his declaration, the defendant might plead the statute anew. Johnson v. Green, 4 Gill & J. 381; Reed v. Clark, 3 McLean (C. C.), 480; Nelson v. Bond, 1 Gill, 218. But the courts would sometimes allow amendments to avoid the plea. 528 PROCESS, PARTIES, AND PLEADING. [cHaP. Ix. statute itself permitted the defence to be taken advantage of under the general issue ;1 and the defence was allowed under the general issue in an inferior court where the practice was to admit everything under that plea except matter of abate- ment2 But in those states where, as in Massachusetts,? the strict rules of the common-law pleading have been abolished or the latitude for amendments largely extended, it is appre- hended that defendants will in all cases be permitted to amend by setting up the plea of the statute. But the amendment of a declaration, so as to state for the first time a cause of action, is equivalent to bringing a new suit as of the date of the amendment; and if the period of limitation has then elapsed the action will be barred, notwithstanding the original decla- ration was filed within the statute period.t It has been held that the bar of the statute cannot be raised by a general demurrer in an action at law;5 but in most of the states the rule appears to be otherwise where it clearly appears upon the Crauford v. Cocks, 3 Eng. L. & E. 594. In Wiley v. Yale, 1 Met. 553, the court, in an action for a penalty, refused to allow an amendment chang- ing the action into an action of debt so as to avoid the effect of the statute which had run in the defendant’s favor. 1 Merceron v. Merceron, 5 Dowl. 271. 2 Williams v. Root, 14 Mass. 278, It was formerly the practice in pleading the statute to recite it at large. But this has not been required in modern times. On setting aside an inquest regularly obtained, the defendant will be allowed to withdraw the plea of the statute, in analogy to the practice on opening a default and permitting a defendant to plead. Fox v. Baker, 2 Wend. 244. 8 See Pub. Sts. c. 167, § 42. # Johnston v. District of Columbia, 1 Mackey, 427. See § 364, ante. If the plaintiff’s proof in an action varies from the allegations in the de- claration so as to show a case for the application of the statute, the de- fendant may amend his answer so as to set up the defence of the statute. Pegram v. Stoltz, 67 N. C. 144. In an action between private persons it is said not to be an abuse of discretion to refuse to permit an amendment setting up the statute of limitations. Plumer v. Clarke, 59 Wis. 646. 5 Huss v. Central Railroad & Banking Co., 66 Ala. 472. The defend- ant’s failure to specify the particular statute relied on to defeat the action is to be remedied by a motion, and is not a ground for demurrer. Hiles v. La Flesh, 59 Wis. 465; Haseltine v. Simpson, 58 Wis. 579. Though a demurrer is interposed to the defendant’s plea of non assumpsit infra sex annos, he will still prevail if the count to which the plea relates be bad in substance. United States v. White, 2 Hill, 59. SEC. IV.] OF PLEADING AT LAW. 529 face of the plaintiff’s declaration or complaint that the cause of action did not accrue within the period of limitation. § 3877. Plea admitted after Default or Judgment.—It has been held that a default of the defendant will not be taken off in order to admit a plea of the statute? nor a judgment set aside for the same purpose. The statute was formerly re- garded with such disfavor that it was said that the courts would never open a judgment, regularly and fairly obtained, in order to let in this defence. But speaking of this rule Gibson, C. J., afterwards said that as the plea of the statute was no longer considered unconscionable ® the rule would hardly be so held now. And in a later case it was held, where judgment had been entered contrary to a rule requiring a special application therefor to the court, that it was within the court’s discretion to permit the judgment to be opened so. that the statute might be pleaded.’ § 378. Form of, in Actions of Contract.— The pleas of the statute in the action of assumpsit are, non assumpsit infra sex 1 Moulton v. Walsh, 30 Iowa, 361; Vose v. Woodford, 29 Ohio St. 245; Coles v. Kelsey, 2 Tex. 541; Frost v. Sweet, id. 485; Hudson v. Wheeler, 34 id. 356; Rivers v. Washington, 34 Tex. 267; McGehee v. Blackwell, 28 Ark. 27; Hutchinson y. Hutchinson, 34 id. 164; Harper v. Torry, 70 Ind. 264; Davenport v. Short, 17 Minn. 24; Harmon v. Page, 62 Cal. 448. But see, contra, Green v. North Carolina R. R., 73 N.C. 524. A de- murrer setting up the statute in an action of account was overruled although it appeared on the face of the complaint that the account was barred ; it not appearing that the complainant was not within some of the exceptions of the statute. Cass County Commissioners v. Adams, 76 Ind. 504. Ina criminal prosecution the defence of the statute of limita- tions cannot be raised by demurrer, but must be specially pleaded. State v. Hussey, 7 Iowa, 409; State v. Groome, 10 id. 308; State v. McIntire, 58 id. 572; State v. Spencer, 79 Mo. 314. 2 Sheets v. Baldwin, 12 Ohio 120; State v. Jennings, 5 Eng. (Ark.) 428. ; 3 Leigh v. Smith, 3 Ired. 442; Walter v. Radcliffe, 2 Dessaus. (S. C.) 577; Bird v. Houze, Speers (S. C.), 250. 4 Brown v. Sutter, 1 Dall. 239. 5 See Shock v. McChesney, 4 Yeates, 507; Farmers & Mechanics Bank v. Israel, 6 S. & R. 293. 6 Ekel v. Snevily, 3 W. & S. 272. 7 Herman v. Rinker, 30 Alb. L. J. 439. 34 5380 PROCESS, PARTIES, AND PLEADING. [cHaP. Ix. annos, or actio non acerevit infra sex annos. The former plea is applicable only to cases arising on considerations executed ; for if the action be on an executory consideration the plea would be bad, since it is not material when the promise was made if the cause of action accrue within six years; and, therefore, in such cases actio non accrevit infra sex annos is the proper plea.! Moreover, the plea of non assumpsit infra sex annos admits that the cause of action did subsist before the six years.2 In indebitatus assumpsit the plea of non assumpsit would be good, because it shows a debt at the time of the promise? But although the plea be good in such a case, yet the plea of actio non accrevit infra sex annos is also proper. It seems, therefore, the safest way of pleading the statute in all cases of debt on simple contract on assumpsit, to aver in substance 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 commencement of the action aforesaid of the plaintiff.” 4 In actions of debt upon simple contracts, the ordinary plea is nil debet infra sex annos. But as non accrevit infra sex annos is a proper plea in any form of action grounded upon simple contract, it is always admissible in an action of debt.® 1 Gould v. Johnson, 2 Salk. 422. 2 Bland »v. Haselrig, 2 Ventris, 151. 8 Gould v. Johnson, supra. In the case of promissory notes on demand and in all others where the debt and promise existed at the same moment, the plea of non assumpsit infra sex annos will be proper. Buckler v. Moor, 1 Mod. 89. But the plea is demurrable if used in an action upon a prom- ise to pay money or do any act at a future period. Thus it is not an answer to a count on a proniissory note payable at a day subsequent to its date. Stilwell v. Hasbrouck, 1 Hill, 561; United States v. White, 2 id. 59. The plea of actio non accrevit infra sex annos, on the other hand, is appropriate in all cases, and is the preferable mode of pleading the statute in assumpsit. Angell on Limitations, § 287. 4 Story on Pleading, 76. In pleading the statute in Wisconsin, the facts showing that the limitation has run must be stated. Paine v. Comstock, 57 Wis. 159. 5 Tf, to a declaration in debt on simple contract, the defendant plead non assumpsit infra sex annos, and a set-off against the promises alleged in the declaration, the plaintiff may treat the pleas as nullities. Perry v. Fisher, 6 East, 549; and see Brennan v. Egan, 4 Taunt. 164; Van Vechten v. Cowell, 1 Hill, 203. In New York under the Code of Civil Procedure, SEC. Iv.] OF PLEADING AT LAW. 581 § 379. In Tort and Replevin.— For similar reasons to those already stated, the plea actto non accrevit infra sex annos is ordinarily preferable in actions of tort to the plea of “not guilty,” since the limitation may run, not from the time of the tortious act, but from the time when the damage resulting therefrom accrued. Thus, to a declaration in an action on the case founded in tort, a plea of not guilty of the grievances alleged in the declaration, within six years before action brought, was held bad on special demurrer.? So in an action on the case against an officer for not duly making return on an execution, the plea “not guilty within six years” seems to have been held bad.? It was held that in replevin the plea of non cepit infra sex annos would not answer the detainer.! And where the defendant pleaded not guilty de captione pre- dicta infra sex annos jam ultimo elapsos, though it was urged that this was the same as pleading non cepit, since if he did not take he could not be guilty of the detainer, and that if this pleading was not allowed the statute would, as to this action, be evaded, the plea was held bad; for it was said that the defendant ought to have answered to the detainer as well as to the taking; that there might be a detainer without a tak- ing; and that a thing might be lawfully distrained although unlawfully kept.® But these objections would not apply to the plea of actio non accrevit infra sex annos. Where the plaintiff complained, in trespass, that the defendant as- saulted and seduced the plaintiff's wife, whereby he lost the § 413, it was held that a defendant’s answer ‘‘ that the claims of the plaintiff . . . if not wholly fictitious are stale and outlawed demands, and have been wholly abandoned and lost by the laches of the plaintiff in not insisting upon the same during the lifetime of the testator, with whom the plaintiff was in daily intercourse; and the defendant claims the bene- fit of all statutes or rules of law or equity which may be invoked for the purpose of resisting the same, and which the evidence presented at the trial may show to be applicable,’’ — was not a sufficient plea of the statute of limitations. Budd v. Walker, 29 Hun, 344. 1 See § 215, ante. 2 Dyster v. Battye, 3 B. & Ad. 448. 8 Fisher v. Pond, 1 Hill, 672. * Young v. Williamson, 1 Har. & McH. 145. 5 Bac. Abr., tit. Lim. Act. 532 PROCESS, PARTIES, AND PLEADING. — [CHAP. IX. comfort of her society, against the peace, to his damage, &c., whether this be an action of trespass or case, it was held that the plea of not guilty infra sex annos was at any rate good as against a general demurrer.} § 880. In Special Cases.— Since a verdict is ordinarily taken to establish the truth of the pleadings, it was held that, on the plea of the statute, a verdict in favor of one but against another joint defendant would be supported.2 And where by mistake a plea of non assumpsit was filed instead of a plea of non accrevit, and the plaintiff in his replication set up a new promise, and proved it, it was held that the issue, although informally joined, was substantial, and that the defect in the pleadings was cured by the verdict. In this case the plaintiff, in fact, relied upon a new promise made within the six years to revive the debt.2 Upon a plea of non assumpsit infra sex annos, a replication averring that within six years before the commencement of the suit the defendant promised, &c., and stating the day on which a capias issued, without showing the return of the capias or connecting it with subsequent pro- cesses, was held good, the allegation of the issuing of the capias being mere surplusage. It is only when the suing out of the capias to save the statute is replied that it is necessary to set forth the return, and to connect the first with the subsequent process on which the defendant is arrested; but where the plaintiff relies on a new promise, the time of the commence- ment of the suit is matter of evidence, and so need not be pleaded. (b) Replications. § 881. In Actions of Assumpsit.— The common replication to the plea of non asswmpsit is that the defendant did promise, or to the plea of actio non acerevit, that the cause of action did accrue, within six years next before the commencement of the action. But whenever the plaintiff relies on special matter to 1 Macfadzen v. Olifant, 6 East, 387. 2 Ivey v. Gamble, 7 Port. (Ala.) 463, 3 Soulden v. Van Rensellaer, 3 Wend. 472. 4 Livingston v. Ostrander, 9 Wend. 306. SEC. Iv. ] OF PLEADING AT LAW. 5383 defeat the operation of the statute, as the fraud of the defend- ant,! or the exception of merchants’ accounts,? or disability 3 such matter must be specially pleaded.* When the plaintiff would avail himself of the exception of his being imprisoned, he must reply that he was imprisoned and that the action was commenced within six years next after the time of his first becoming at large. When the action is brought during the continuance of the imprisonment, the replication is that at the time when the said causes of action accrued the plaintiff was, and ever since has remained, and still is imprisoned.5 So the disabilities of infancy and coverture must be specially replied, with the averment that the plaintiff brought his ac- tion within six years next after the time when he became of full age, or of a female plaintiff's becoming discovert; and in case of continued infancy, that the plaintiff was and still is an infant. If the plaintiff be “beyond seas,” the proper replica- tion is that at the time when the cause of action accrued he was in parts beyond the seas, that is to say, at , and that he afterwards, on , returned, which said return was his first return after the accruing of the cause of action, and that he commenced the action within six years next after his first return. In case of the absence of the defendant beyond seas, the replication is that the defendant before and at the time when the cause of action accrued was in parts beyond the seas, or out of the State, that is to say, at —,and that he afterwards, to wit, on returned, which return was his first return after the accruing of the cause of action; and that the plaintiff commenced his action within six years next after the defendant’s first return after the accruing of the cause of action, or any part thereof.’7 Whenever the 1 Clark v. Hougham, 3 Dow & R. 322; Livingston v. Ostrander, 9 Wend. 806. A judgment was set aside because the case was tried below without replication or issue joined on a plea of the statute. Curry v. Mannington, 23 W. Va. 14. 2 See ante, §§ 200-208. 3 Witherup v. Hill, 9S. & R. 11. 4 Piggott v. Rush, 4 Ad. & Ell. 912. 5 The exact day is not material in any of the cases considered in the text. ‘ 6 Childress v. Grim, 57 Tex. 56. 7 A replication by an administrator that the plaintiff’s intestate died in 534 PROCESS, PARTIES, AND PLEADING. _— [CHAP. IX. replication sets up special matter it should conclude with a verification.1 (c.) New Promises relied on. § 882. Declaration to be on Original Promise. — Notwith- standing the plaintiff may rely upon a new promise or ac- knowledgment to take the case out of the statute, it is held that the declaration should be upon the original promise. In such an action of assumpsit upon a bill of exchange it being objected that the plaintiff ought to declare specially on the new promise or acknowledgment, Lord Ellenborough said: “ As to the form of declaring insisted on, it is enough’ to say that it has never been in use, and that it is the common prac- tice to declare on the original contract, and if the statute be pleaded the only question is whether the defence given by it has been waived.”? In a later case Best, O.J., said: ‘“ Prob- ably the new promise ought in strictness to be declared on specially, but the practice is inveterate the other way and we cannot get over it.”® The same practice is sanctioned in Massachusetts, the court saying that when the statute is 1828, that letters of administration were not taken out till 1844, within six years of the time of bringing the action, and so that the cause of ac- tion accrued within six years, was beld bad. Worden v. Worthington, 2 Barb. 368. 1 Chevily v. Bond, J. Holt, 427; Bradford v. Kennerdale, 3 Mod. 318; Tidd, Pr. Ch. 29. A rejoinder, by one of several defendants, to a replication averring a new promise by the defendants within six years, that he, the defendant, did not make a new promise, without denying that the other defendants did so, was held bad on special demurrer. Tracy v. Rathbun, 3 Barb, 548. Where in a real action the defendant answered that the deed under which the plaintiff claimed was executed in fraud of the grantor’s creditors, a replication that the fraud if any was committed more than six years before the commencement of the action was held bad on demurrer for want of facts, since the limitation pleaded was not applica- ble to an answer or matter of defence. Wilhite v. Hamrick, 92 Ind. 594. In Alabama, under the Code, § 8225, a replication to a plea of the statute, averring a former action by the plaintiff, judgment therein, a reversal for error, and a new action brought within a year is sufficient, although it does not aver that the dismissal of the former action was rendered neces- sary by the judgment of reversal. Hill v. Huckabee, 70 Ala. 183. 2 Leaper v. Tatton, 16 East, 420. 3 Upton v. Else, 12 Moore, 303. SEC. IV.] OF PLEADING AT LAW. 5385 pleaded, the plaintiff may reply the new promise ;1 and when the pleadings assume this shape the original promise is ap- parently the cause of action; but it is the new promise alone that gives it vitality, and that is, substantially, the cause of action.2 And where a defendant in an action of contract re- lies on the statute but judgment is rendered against him on proof of his having made a new promise which removes the statute bar, the judgment is considered as rendered on the old contract.? 1 Under the Practice Act of Massachusetts, Pub. Sts. c. 167, § 24, the plaintiff may prove the new promise without filing a replication, unless the court on the defendant’s motion requires him to file it. See Cook v. Shearman, 103 Mass. 21. 2 Little v. Blunt, 9 Pick. 488; Baxter v. Penniman, 8 Mass. 133; Fiske v. Needham, 11 id. 452; Brown v. Anderson, 18 id. 201; Livingston v. Ostrander, 9 Wend. 306; Barrett v. Barrett, 8 Maine, 355. But in Geor- gia, the declaration must be upon the new promise, setting out the origi- nal debt as the inducement. Martin v. Broach, 6 Ga. 21. And so it seems in South Carolina, Sims v. Radcliffe, 3 Rich. (S. C.) 287; and in Texas, Coles v. Kelsey, 2 Tex. 541. And to the same effect see Kamp- shall v. Goodman, 6 McLean (C. C.), 189. 8 Isley v. Jewett, 3 Met. 439. In Green v. Crane, 2 Lord Raym. 1101, the action being by an executor upon a promise made to his testator, and it appearing that, after the death of the testator and more than six years from the time of the contract, the defendant had acknowledged the debt to the executor and promised to pay it, —it was held that the action could not be maintained, the promise to the testator not falling within the issue. And see to the same effect Ward v. Hunter, 6 Taunt. 210; Pittan v. Foster, 1 B. & C. 248. In Jones v. Moore, 5 Binn. 573, the action was also brought by an executor upon a promise to his testator, and to take the case out of the statute evidence was given of a new promise to the exec- utor. In the opinion of the court the evidence did not maintain the issue, which was upon a promise to the testator, but the court was of opinion that if the acknowledgment or new promise were set up by repli- cation, then the evidence would be admissible. In Kinder v. Paris, 2 H. Black. 592, where to a declaration in assumpsit, by the assignees of an in- solvent debtor, for money due to him before his insolvency, stating the promise to have been made to the plaintiffs as assignees, the defendant pleaded that. he did not undertake a promise in manner and form as the plaintiffs had averred at any time within six years, and the plaintiffs replied that when the cause of action first accrued to them the defend- ant was beyond sea, and that within six years after his return they sued out their original writ against him; to which the defendant rejoined that the cause of action first accrued to the insolvent before the plaintiffs be- 536 PROCESS, PARTIES, AND PLEADING. [ouaP. IX. SECTION V. OF PLEADING IN EQUITY. (a) Generally. § 388. Statute may be set up by Plea, Demurrer, or An- swer.—It was formerly doubted whether a defendant in equity could by demurrer take the objection that the plaintiff’s remedy was barred by the statute of limitations or by lapse of time under the analogy of the statute ; and Lord Hardwicke refused to allow a demurrer of this nature for the reason that excep- tions, as infancy or coverture, might take the cause of action out of the objection, and that the plaintiff should have oppor- tunity to prove the exceptions, which he could not do upon demurrer! But it is observed that this is hardly a sufficient reason for the distinction between a plea and a demurrer, since the plaintiff may, and should, allege the exception on which he relies in his bill;? and it.is now the settled rule that the statute of limitations, or objections in analogy to it upon the ground of laches, may be taken advantage of by demurrer as well as by plea, when the period of limitation appears with certainty on the face of the bill? If the objection of lapse of came assignees, and that six years had elapsed after the cause of action first accrued to the insolvent, — it was held that there was a variance. The Supreme Court of Massachusetts has been unable to perceive the technical difficulty in the cases above referred to, and the practice in that state has always been to declare on the original promise, since an implied promise could not be supported on the ground of a new con- sideration as an independent substantive promise; and the promise being ‘implied from the original consideration, it is necessary to declare on the original consideration. But “although this seems the proper form of declaring, yet the new promise, whether express or implied, actually gives the remedy and is substantially the cause of action.’? Per Wilde, J., in Little v. Blunt, 9 Pick. 488. ‘ 1 Gregor v. Molesworth, 2 Ves. 109; and see Aggas v. Pickerell, 3 Atk. 225. 2 Dan. Ch. Pr. *621; and see Humbert v. Trinity Church, 7 Paige, 195; Van Hook v. Whitlock, 7 id. 373. 3 Story, Eq. Pl. §§ 574, 751, and notes; Dan. Ch. Pr. *622; and see also Hoare v. Peck, 6 Sim. 51; Cuthbert v. Creasy, 4 Bligh, 125; Fyson v. . SEC. V.] OF PLEADING IN EQUITY. 587 time does not appear on the face of the bill, the defendant may raise such objection by plea;! and it is now established, though formerly it was held otherwise, that the bar applies equally to the relief sought and the discovery prayed for; but it is held that such a plea will not hold to a mere bill for dis- covery.?, The objection may also be taken by way of answer, and relied on as a defence.2 In accordance with the rule of pleading heretofore laid down as established at law, where the demand is of anything executory, as a promissory note paya- ble at a distant period, the defendant must by his plea aver that the cause of action has not accrued, and not that he did not promise, within six years; for the statute bars only what was actually due six years before the suit was brought.* § 384. Defendant to Traverse Allegations of Fraud or Avoid- ance.— When the bill charges fraud, and alleges that the fraud was not discovered until within six years next before the filing of the bill, the plea should not only set up the stat- ute, but should contain averments traversing the allegations of fraud ; or stating that the fraud, if any, was discovered within six years.5 The plea should also be accompanied by an an- swer in support of the plea, traversing the allegations of the Pole, 3 Younge & C. 266; Kane v. Bloodgood, 7 Johns. Ch. 90; Wisner v. Barnet, 4 Wash. (C. C.) 631; Dunlap v. Gibbs, 4 Yerg. (Tenn.) 94; Freake v. Cranefeldt, 8 Myl. & C. 499; Foster v. Hodgson, 19 Ves. 180; Deloraine v. Browne, 3 Bro. C. C. 633 and notes; Hardy v. Reeves, 4 Ves. 466; Dickson v. Miller, 11 Smedes & M. 594; Muir v. Leake &c. Orphan House Trustees, 3 Barb. Ch. 477; Fellers v. Lee, 2 Barb. 488; Underhill v. Mobile Fire Dept. Ins. Co., 67 Ala. 45; Ilett v. Collins, 103 Ill. 74. 1 Jeremy v. Best, 1 Sim. 373; Story, Eq. Pl. § 755. 2 Hindman »v. Taylor, 2 Bro. C. C. Perkins’s ed. 11, notes; Dan. Ch. Pr. *730 note (2). 8 Van Hook v. Whitlock, 7 Paige, 373. See Story, Eq. Jur. §§ 529, 1520. A plea of the statute to a bill in equity is a pure plea and need not be accompanied by an answer unless the bill anticipates the defence and sets up matter to avoid the statute. West Portland Homestead Association v. Lownsdale, 17 Fed. Rep. 205. 4 Story, Eq. Pl. 582; Beames, P]. in Eq. 165, 169, 170. 5 Brooksbank v. Smith, 2 Younge & C. 58; Clayton v. Winchelsea, 3 id. 688; Kane v. Bloodgood, 7 Johns. Ch. 1384; Goodrich v. Pendleton, 3 id. 384; 2 Story, Eq. Pl. 525. 588 PROCESS, PARTIES, AND PLEADING. [cHAP, Ix. bill which go to avoid the bar. Where a bill was brought by an administrator de bonis non for an account of the intestate’s estate after a lapse of more than twenty years, and the defend- ant pleaded the statute and filed a general answer to the whole bill, this was said by Story, J., to be “a dry, naked plea of the statute of limitations, without any averments negativing the special matters set up in the bill, which, if true, would avoid the operation of the statute; and he held that “the plea should contain in itself such averments; and the answer in support thereof should also contain a full discovery of the matters so set up in avoidance of the bar.” It is not sufficient for the answer alone to set up such negative matters, for it is mere matter of discovery ; but the plea should in itself, if true, contain matter to constitute a complete bar to the action.? Upon the same ground it is held, where a particular special promise within six years is charged in the bill to avoid the statute, that the defendant must specially deny the promise by averment in the plea, and must accompany it with an an- swer in support of the plea containing a like denial of the promise of other matter charged, He is not bound in such a case to answer to the original cause of action; for that may, consistently with his plea, be well admitted.® (b.) The Replication of Fraud. § 885. Defendant's Fraud removes the Bar of the Statute: Limitations of the Rule.— It may be taken to be the settled doctrine of the courts of equity that if a defendant has perpe- trated a fraud, by reason of which the existence of the cause of action has been concealed from the plaintiff until the stat- ute bar would operate to defeat his action at law, the court will interpose to remove the bar out of the way of the injured, party,* provided the plaintiff bring his action within six years 1 Stearns v. Page, 1 Story (C. C.), 204. The same doctrine was laid down by Lord Cottenham in Foley v. Hill, 3 Myl. & Cr. 475. 2 Story, Eq. Pl. §§ 625, 683. § Chapin v. Coleman, 11 Pick. 831; and see 2 Beames, Eq. Pl. 164, 170, 274. * Story, Eq. Jur. § 1531; Booth v. Warrington, 4 Bro. P. C. 163; Coster v. Murray, 5 Johns. Ch. 522; Michoud v. Girod, 4 How. 503 SEC. V.] OF PLEADING IN EQUITY. 5389 after his discovery of the fraud or after fair opportunity to discover it.! The reason of the rule is founded upon the con- sideration that in such cases the statute ought not in con- science to run; the conscience of the defendant party being so affected that he ought not to avail himself of the benefit of the limitation? The rule stated is applied with caution? and it is held that where the fraud is not actual, but merely constructive, the limitation will apply.* And the plaintiff’s ignorance of his rights, merely, in the absence of fraud or Hallett v. Collins, 10 id. 174; Phalen v. Clark, 19 Conn. 421; Atlan- tic Bank v. Harris, 118 Mass. 147. See Lewin on Trusts, #459; § 22, ante. A claim for services forty years old was sustained against a defend- ant, who had obtained such services by falsely representing to the person who rendered them that he was a slave of the defendant. Ferris v. Hen- derson, 12 Pa. St. 49. 1 The statute begins to run from the discovery of the fraud. Stocks v. Van Leonard, 8 Ga. 511; Lawrence v. Trustees, etc., 2 Denio, 577; Donnelly v. Donnelly, 8 B. Mon. 113; Longworth v. Hunt, 11 Ohio St. 194; Ormsby v. Longworth, id. 653; Walker v. Walker, 25 Ga. 76; Smith v. Talbot, 18 Tex. 774; Way v. Cutting, 20 N. H. 187; Lott v. Degraf- fenreid, 10 Rich. Eq. (S. C.) 346; Kibler ». MclIlwain, 16 S. C. 550; Beattie v. Pool, 18 id. 379; Clews v. Traer, 57 Iowa, 459; Ney v. Rotlie, 61 Tex. 374. It must appear affirmatively in the plaintiff’s bill that it was filed within the statute period of limitation after the discovery of the fraud. Field v. Wilson, 6 B. Mon. 479. And in order to avoid the bar of the statute the plaintiff must not only allege his ignorance of the fraud, but when and how he discovered it, and must offer satisfactory evidence to prove these averments. Carr v. Hilton, 1 Curtis(C. C.), 390. The limita- tion runs from the discovery of fraud only where a right of action also then exists. Suber v. Chandler, 18 S. C. 526. So Underhill v. Mobile Fire Dept. Ins. Co., 67 Ala. 45. But once running, no subsequent occur- ring disability will stop if. Id.; Hunter v. Hunter, 50 Mo. 445. In Mississippi it is held that the statute runs from the commission of the fraud, unless there is such a relation of trust and confidence as to render it the duty of the defendant to disclose, in which case it runs only from the discovery. Wilson v. Ivy, 32 Miss. 233. In New York, under § 382 of the Code of Civil Procedure, the statute begins to run from the time an account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made. Carr v. Thompson, 87 N. Y. 160; Kirby v. Lake Shore & Mich. Southern R. R. 14 Fed. Rep. 261. 2 Hovenden v. Annesley, 2 Sch. & Lef. 607. Per Lord Redesdale. 3 Stearns v. Page, 7 How. 819; Wagner v. Baird, id. 234; Couch »v. Couch, 9 B. Mon. 160. 4 Wilderming v. Russ, 33 Conn. 67. 540 PROCESS, PARTIES, AND PLEADING. [cHaP. Ix. connivance on the defendant’s part, will not affect the operation of the statute, when the plaintiff possesses the means of obtain- ing a full knowledge of the facts.1 The presumption is that 1 Kane v. Bloodgood, 7 Johns. Ch. 90; Hawley v. Kramer, 4 Cowen, 718; Green v. United States, 17 Ct. Cl. 174; Farnam v. Brooks, 9 Pick. 212. In this case the principles stated in the text were laid down with great elaboration. The questions involved arose upon a bill in equity to set aside a settlement of accounts and contract made be- tween defendant and the administrators of H in 1808, the subject of which settlement was an insurance account subsisting between H and the defendant for several years and not adjusted in the lifetime of H. The defendant was an insurance broker from 1785 to 1803, keeping an office, in which H and others were accustomed to underwrite policies of insurance, and during that period a vast amount of insurance business was transacted under the care and inspection of the defendant, who was the general agent of the office, he keeping the accounts for the under- writers, receiving premiums, and paying losses, and receiving a com- mission for his services. It appeared, further, that there was a private agreement of copartnership between the defendant and H, not known to the other underwriters in the office, by virtue of which the defendant be- came interested in one fourth part of all sums underwritten by H as to premiums and losses. This copartnership commenced in October, 1794, and continued until June, 1803, when the defendant discontinued the office; at which time there were large balances due to H, which remained unadjusted until his death. In January, 1808, H died intestate, and ad- ministration of his estate was granted. On the fourth of April, 1808, the defendant paid to the administrators sixty thousand dollars, as and for a full settlement and discharge of all the claims of H’s estate against him, and the administrators ‘signed a receipt for that sum in full for the whole underwriting account of H from the period of H’s first beginning to un- derwrite in the defendant’s office to date. It was stated in the receipt that the agreement between the administrators and the defendant was that the underwriting account of H, with all its advantages and disad- vantages, be wholly the property of the defendant, in like manner as if the defendant had been the original underwriter instead of H. The bill sought to defeat the prima facie effect of this receipt, and it alleged that sums were omitted in the defendant’s statement which ought to have been credited, and others charged which ought not to have been debited to H’s estate; and that there was presented to the administrator an ex- aggerated and false list of claims against the insurance account of H; and that upon this statement and list of claims the administrators, supposing them to be true, and reposing confidence in the defendant, were induced to accept his offer of sixty thousand dollars, and give him the receipt and discharge above mentioned. The answer denied all unfair advantages taken of H in his lifetime, or of his administrators afterwards, and SEC. V.] OF PLEADING IN EQUITY. O41 if the party affected by the fraud might, by ordinary and rea- sonable diligence in his affairs, have detected it, he must be alleged that H in his lifetime, being of full capacity, made frequent ex- aminations of the accounts between the parties; that the person selected by the administrators and the defendant to examine the books did so, aided by the defendant, and recommended to the administrators to accept the offer of the defendant, and that they did so without any misrepresen- tation on his part, and received the money, and thereupon signed the receipt and transfer above mentioned, in the presence of one B, their confidential friend and adviser. The plaintiffs contended that the facts alleged in the bill constituted fraud, direct or constructive, such as is holden in courts of equity sufficient to vitiate any contract or bargain. The statute of limitations was insisted on as a bar to the bill. One ground taken for avoiding the contract, on the part of the plaintiffs, was that in making the settlement the defendant omitted to mention claims existing in the nature of salvage against the government of Spain for ille- gal captures, which claims at the time of the settlement were thought to be of little or no value, but afterwards became of great value. It was held that as the statement of the defendant did not purport to give an ac- count of all the sources from which advantages might accrue, and as all such claims might be traced in the defendant’s books, and the defendant in his answer stated that they escaped his recollection, the omissions did not show actual or constructive fraud on the part of the defendant. The defendant had made a written statement to H, showing a balance of $64,688 in the hands of the defendant, and a list of outstanding claims against the insurance account of H, and it was alleged that upon this statement and list of claims the administrators, by the advice of an agent employed by them to examine the defendant’s books, were induced to make the settlement. In 1827, after the death of:the administrators and of their agent, the administrator de bonis non brought the bill before the court to set aside the receipt and agreement on the ground of constructive fraud on the part of the defendant, or at least to surcharge and falsify. From an examination of the books by an accountant employed by the plaintiff, it appeared that the balances in favor of H amounted to $64,688, according to the defendant’s written statement, but that there were errors in the book, which if corrected would have increased that sum to $68,276. The defendant admitted there were errors, but not to the amount stated in the account. It was held, in reference to the statute of limitations, which was set up, that the statute does not apply to direct trusts created by deed or will, and perhaps not to those created by ap- pointment of law, such as executorships and administrations; but con- structive trusts arising from partnerships, agencies, and the like, are subject to the statute; that in a court of equity there was as much force to be given to the statute when pleaded to a bill as to an action at law; that is, by showing that there had been a concealment, and that the discovery 542 PROCESS, PARTIES, AND PLEADING. [cHaP. IX. ? ? taken to have had seasonable knowledge of it For it is a general rule that the plaintiff’s ignorance of his rights, merely, in the absence of fraud or connivance by the defend- ant will not stop or suspend the operation of the statute ;? and the plea of the statute will not in such cases be answered by the fact that the action is formed on a simple breach of trust, or upon the bare violation of an engagement.? § 886. Applications of the Rule.—So it is held that where a plaintiff delayed suit against one of two indorsers of a note, upon such indorser’s request that suit be delayed against him, or that the other indorser be sued first, the operation of the of the fraud was only within six years; that if the aggrieved party knew of the fraud when it was committed, or had full possession of the means of detecting it, which is the same as knowledge, neglect to bring his com- plaint for more than six years would deprive him of his remedy, and ought to upon the very principles and reasons on which the statute of limitations was enacted. The court apprehended that if they should sus- tain a bill founded on fraud, committed more than six years before the filing of the bill, without any proof of the actual concealment of it, they would, to a great extent and in a large class of cases, judicially repeal the statute, which would be a usurpation of power. But the difference be- tween $64,688, the sum named in the defendant’s written statement, and $68,276, the sum which should have been named, was deemed so important an error in the basis of the settlement as to have affected the compromise, and the plaintiff was therefore permitted to surcharge and falsify, the defendant’s admissions having taken this part of the case out of the statute. 1 Story, Eq. Jur. § 152; Piper v. Hoard, 65 How. Pr. 228. A false return of service on a defendant is a fraud on the part of the officer mak- ing it, and the statute does not begin to run till it comes to the knowledge of the party injured. Foley v. Jones, 52 Mo. 64. 2 Underhill v. Mobile Fire Ins. Co., 67 Ala. 45; Ramsey v. Quillen, 5 Lea (Tenn.), 184; Adams v. Ipswich, 116 Mass. 570; State v. Schaeffer, 12 Mo. App. 295; Conner v. Johnson, 104 Ill. 365; Ossipee v. Grant, 59 N. H. 70. The statute has in some cases been held not to be a defence where the debtor actively induces the creditor to relax his vigilance, or obstructs the action by assurances of a settlement and adjustment. Abell v. Pennsylvania Mut. Life Ins. Co., 18 W. Va. 400; State v. Murray, 9 Baxter (Tenn.), 209; Brown v. Brown, 61 Tex. 45; McAlpine »v. Hedges, 21 Fed. Rep. 689. See § 890, post. 8 See Cole v. McGlathry, 9 Me. 131; McKown v. Whitmore, 31 Me. 448; Buckner v. Calcote, 28 Miss. 432. SEC. V.] OF PLEADING IN EQUITY. 548 statute will not be supended in equity as to the first indorser.} So where the plaintiff, upon the settlement of accounts be- tween the parties, erroneously credits the defendants with a certain sum, the statute will run against a suit to recover the over payment from the time of the settlement.2 Nor is a denial on the part of the defendant that he was part owner in a vessel, made when a portion of an account for repairs was presented to him, such a fraudulent concealment as to prevent him from availing himself of the plea of the statute.’ But where the delay of the plaintiff to seek relief was occa- sioned, in part at least, by the promise of the defendant to rectify the errors complained of, and the existence of such errors came to the knowledge of the plaintiff gradually, the circumstances of the case being such that the defendant could suffer nothing by the delay, it was held that the plaintiff was not precluded from relief on the ground that he had not sought it within reasonable time.t And where it is agreed between the assignor and assignee of a promissory note, at the time of the assignment, that the assignee need not de- mand payment of the maker before a certain time, it is no laches in the assignee not to commence suit on the note be- fore that time.6 In the case of a conveyance made in fraud of creditors it is held that the statute limitation runs as against a creditor of the grantor from the time of the record of the deed; or from the time when the creditor has actual notice of the conveyance, if he obtains such notice before the deed is recorded® Where a limitation is created by agree- 1 Bank. of Tennessee v. Hill, 10 Humph.176. But where a surety upon a note promised to confess judgment if the plaintiff would delay suit, which the plaintiff accordingly did for twenty days during which time the limitation expired, the surety was not permitted to set up the statute, the delay being considered as having been fraudulently procured by him. Newton v. Casson, 80 Ky. 809. 2 Brown v. Edes, 37 Me. 318. 8 Rouse v. Southworth, 39 Me. 404. * Callender v. Colegrove, 17 Conn. 1. 5 Nance v. Dunlavy, 7 Blackf. (Ind.) 172. 6 Hughes v. Littrell, 75 Mo. 73. See also Rounds v. Green, 29 Minn. 189. Thus when apparent fraud had been practised at a sheriff’s sale, whereby competition in bidding was checked, and: more than six years 544 PROCESS, PARTIES, AND PLEADING. [cHapP. Ix. ment of parties, as, in an insurance policy, that no suit at law or in equity shall be sustained unless brought within a cer- tain time after loss, it seems that any bad faith or unreason- able delay on the part of the defendant, whereby the plaintiff is induced to postpone suit, operates as a waiver of the limitation.1 § 387. Equity will not Relieve against Plaintiffs Laches. — Nor will the courts interpose to prevent the operation of the statute if a party slumber upon his right unreasonably after the detection of fraud, or after means have been afforded him for detecting it. For, it is said, if the mere allegation of fraud enabled any one to open transactions many years after he had notice of it, this doctrine might itself be the means of perpetuating the greatest frauds in cases where, evidence be- ing lost by lapse of time, an innocent party might be left de- fenceless.2, Thus, although it was held that a purchase made by an administrator of one of the distributees, shortly after the latter became of age, of all his interest in his father’s per- sonal estate, the administrator having rendered no inventory or account and the purchase having been made at a grossly inadequate price, was fraudulent and would have been voida- ble at the election of the distributee if application for relief had been made within a reasonable time after the sale, or after obtaining knowledge of the fraud,—the court, after the lapse of eleven years would not lend its aid to rescind the transaction and compel the administrator to account; the thereafter suit was brought to set aside the sale on the ground of the fraud, it was held that the suit was barred by the statute. ‘Thrower v. Cureton, 4 Strobh. Eq. 155. And the statute begins to run from the time of the sale, not from the date of the deed. Cox v. Cox, 6 Rich. Eq. 275. A replication setting up that a deed of land was obtained by fraud, without more, is not an answer to the plea of the statute. York v. Bright, 4 Humph. (Tenn.) 312. 1 Black v. Winneshiek Ins. Co., 81 Wis. 74 ; Fullam v. Union Ins. Co., 7 Gray, 61. 2 Champion v. Rigby, 1 Russ. & Myln. 539; and see Ferson v. Sanger, 1 Woodb. & M. (C. C.) 138; Gilpin v, Smith, 11S. & M. 109; Keeton »v. Keeton, 20 Mo. 530; Moore v. Greene, 2 Curtis, 202; McLure v. Ashby, 7 Rich. Eq. (S. C.) 480; Connoly v. Hammond, 58 Tex. 11; LeRoy », Mulliken, 59 Cal. 281. SEC. V.] OF PLEADING IN EQUITY. 545 distributee having, when the contract was made or soon there- after, knowledge of circumstances sufficient to put him on inquiry. For however true it may be that the stutute does not begin to run until after discovery of the fraud, yet if a con- siderable period has elapsed before the discovery this should quicken the diligence of one desiring to avoid the contract for that cause, especially where, by the exercise of diligence, the true state of the case might have been earlier known. § 388. Equitable Rule applied in Actions at Law in England. — The question whether the equitable rule is to be applied in actions at law has been the subject of much discussion, and in support of the affirmative doctrine the case of Bree »v. Holbech has been relied on. In this case the replication set forth the means by which the plaintiff had been defrauded, and stated that the plaintiff at the time of paying the money to the defendant was ignorant of the falsehood of the defend- ant’s assertions on the strength of which the payment was made, and of the fraud practised upon him, and did not dis- cover such falsehood and fraud until within the space of six years next before suing out the writ. Lord Mansfield was of opinion that the replication did not sufficiently charge fraud on the defendant, but said, “‘ There may be cases which fraud will take out of the statute of limitations.” The plaintiff was granted leave to file an amended replication expressly charg- ing fraud on the defendant.? In the later case of Short v. McCarthy the case of Bree v. Holbech seems to have been considered authority upon the point.2 But upon the whole, the tenor of English authority seems to have been in opposi- tion to the views expressed by Lord Mansfield, down to the 1 Johnson v. Johnson, 5 Ala. 90. See Veazie v. Williams, 3 Story, 611; Gould v. Gould, id. 516; Stokes v. Lebanon Turnpike Co., 6 Humph. (Tenn.) 241; Young v. Cook, 30 Miss. 8320; Browne v. Cross, 7 Eng. L. & E. 263; Leavenworth County Commissioners v. Chicago Railway Co., 5 McCrary (C. C.), 508; Taylor v. South Alabama Railway Co., 4 Woods (C. C.), 575. 2 Bree & Holbech, Doug. 655. 8 Short ». McCarthy, 3 Barn. & Ald. 626; and see Brown v. Howard, 3 Brod, & B. 78; Clark v. Hougham, 3 Dowl. & R. 330; Bolton, Ex parte, 1 Mont. & Ayre, 60. 35 546 PROCESS, PARTIES, AND PLEADING. [cHapP. Ix. time of the passage of the Judicature Act of 1873.1 But in 1881, in an action at law to recover damages for fraudulent representations, a replication to the plea of the statute to the effect that the plaintiffs did not discover and had not reasonable means of discovering the fraud within six years before action brought, was held good,? and this decision was affirmed by the Court of Appeal.2 In his opinion in this case Coleridge, C. J., reviewing the cases, discussed the question involved exhaustively, and admitted that by the tenor of the decided cases at common law such a replication could not be supported. He also held that had the proceeding been in equity the replication would have been good.t “Then the question arises, how is this proceeding to be regarded. Is it to be regarded as a common-law proceeding in which it must be admitted that the defendant would succeed, or... as an equity proceeding in which the plaintiff would . . . succeed? Strictly speaking it is neither; but it is an action in the High Court of Justice created by the Judicature Act of 1873, by which common law and equity in a certain sense were both abolished, that is to say, the right and principles of both re- mained, but they were not allowed to exist in conflict with one another, and the High Court of Justice was not only em- powered, but was ordered to administer justice according to the principles of law and equity together, and to give relief according to such principles concurrently.” § 389. Different View in certain States. —In this country the courts of New York refused to admit the doctrine that in the courts of law the fraud of a defendant should be admitted in any case to avoid the effect of the statute of limitations. In a leading case upon the subject Spencer, C. J., held, as the statute by its terms relates to specific actions, and pro- vides that such actions shall be begun and sued within six years next after the cause of action accrues, and not after, that 1 See Hunter v. Gibbons, 1 H. & N. 459; Imperial Gaslight Co, v. London Gaslight Co., 10 Exch. 39. 2 Gibbs v. Guild, 8 Q. B. D. 296. 89 Q. B. D. 59 (Holker, L. J., dissenting), 4 Citing Booth v. Warrington, 4 Bro. P. C. 163. SEC. V.] OF PLEADING IN EQUITY. 547 the effect of the statute is positively to prohibit the bringing of such actions after the lapse of the six years. He con- sidered that the contrary expressions of Lord Mansfield in Bree v. Holbech were obiter dicta} and refused to admit that the courts of law could have any power to abrogate the terms of the statute. He further considered that the exceptions in the statute providing for extension of time in certain cases excluded the introduction of other exceptions by judicial con- struction.2?. In Virginia also it was held that the effect of the 1 But see remarks of Story, J.,in Sherwood v. Sutton, 5 Mason (C.C.), 149. 2 Troup v. Smith, 20 Johns. 33; followed in Leonard v. Pitney, 5 Wend. 30; Allen v. Mille, 17 id. 202. In Sherwood v. Sutton, supra, Story, J., commenting on the opinion of Spencer, C. J.,in Troup v. Smith, said: ‘‘If the point were entirely new, and left untouched, both at law and in equity, the reasoning of the learned judge would justify much hesitation in introducing such an exception. Perhaps it would be con- clusive against any attempt to go beyond the precise terms of the savings of the statute, as a limitation of duty most fit for those who are to con- strue the statute, and not to create an exception beyond its terms. But it is to be remembered that most, if not all, the statutes of limitations existing in the several States of this Union have borrowed the language of the statute of 21 of James. In all the revisions since the American Revolution the same general enactments have been preserved; and it cannot be doubted that the expositions of the statute which had been adopted in England, both at law and in equity, were well known to those who framed our own. Under such circumstances it would not be unnat- ural to suppose that these expositions were received as the true interpreta- tion of the text. It does not strike me, therefore, that the expositions of the statute by courts of chancery are to be rejected in such cases, unless they turn, not upon the words of the statute, but upon some equity peculiar to such courts, and not cognizable at law. For if such courts profess to expound the statute upon a general principle, which must equally apply to courts of law, and @ fortiori, if they profess to follow the law (as they certainly do in cases of concurrent jurisdiction), then, as has been already remarked, their decisions may justly be deemed au- thorities for the guidance of courts of law. With great deference, it appears to me that the learned judge has not adverted to or given suffi- cient weight to this consideration; and I cannot but think that if his own luminous judgment in the subsequent case of Murray v. Coster (20 Johns. 576), in which the distinction is so clearly drawn, had been then before him, he would not have been disposed to have pressed the argument against this class of chancery decisions quite so far. At all events, my own judgment does not justify me, in a case of concurrent jurisdiction, 548 PROCESS, PARTIES, AND PLEADING. [cHaP. Ix. defendant’s fraud to avoid the six years’ limitation was con- fined to the courts of equity.1 In South Carolina, where the maker of a note secretly and fraudulently obtained pos- session of the note and kept it until the statute limitation had run out, and the plaintiff on discovering the fraud brought assumpsit, as on a note lost, to recover the amount, — it was held that the statute was a bar to the action, not- withstanding the fraud and although the plaintiff had not known where the note was.2 So in North Carolina it was held that an exception as to fraud was not within the act of limitations, and that a court of law was not at liberty to admit it, though a court of equity might; since, where the words of an act and its saving clauses are explicit, the courts are not at liberty to travel out of them? § 890. But like Rule generally applied at Law in the United States. — But the weight of authority in the United States is in favor of the rule that where the delay in bringing suit is owing to the fraud of the defendant, the cause of action ought not to be considered as having accrued until the plain- tiff could obtain a knowledge that he had a cause of action, and that the defendant is not to be permitted to avail himself of his own fraud by successfully setting up the statute limi- tation to defeat the plaintiff’s claim.4 The reason upon which in rejecting their just influence as authoritative expositions of the statute, valere quantum valere possent.’? This question does not appear to have been discussed in New York in any case arising under the Code of Civil Procedure, but it is apprehended that now in that state the equitable tule might be applied upon principles analogous to those laid down by Lord Coleridge in Gibbs v. Guild, supra. 1 Callis v. Waddy, 2 Munf. 511; Rice v. White, 4 Leigh, 474. See Bickle v. Crisman, 76 Va. 678. 2 Miles v. Barry, 1 Hill, 296. 8 Hamilton v. Smith, 3 Murph. 115. But in the earlier case of Sweat v. Harrington, 2 Hayw. 129 (1783), Johnston, J., said: ‘* Supposing it to be a fraud, which there is no evidence of, then the act will not run but from the time of its discovery.” This case is not referred to in the opinion in Hamilton v. Smith. 4 First Massachusetts Turnpike Co. v. Field, 8 Mass. 201; and see Comer v. Fish, 1 Pick. 435; Wells v. Fish, 3 id 74; Farnam v. Brooks, 9 id. 212; Duffitt v, Tuhan, 28 Kan 299; Yrieston v. Tarleton, 67 Ala. SEC. V.] OF PLEADING IN EQUITY. 549 the rule rests is “that every statute is to be expounded reasonably, so as to suppress, and not to extend, the mischiefs which it was designed to cure. The statute of limitations was mainly intended to suppress fraud, by preventing fraudulent and unjust claims from starting up at great distances of time, when the evidence might no longer be within the reach of the other party, by which they could be repelled. 1t ought not, then, to be so construed as to become an instrument to encourage fraud, if it admits of any other reasonable inter- pretation; and cases of fraud, therefore, form an implied 126. In Massachusetts and other states it is now provided by statute that where one who is liable to an action “fraudulently conceals the cause of such action from the knowledge of the person entitled to bring the same, the action may be commenced at any time within six years after the person who is so entitled shall discover that he has such cause of action.” Pub. Sts. c.197,§14. It was held, under this provision, that the concealment of property by an insolvent debtor from his assignees, and the concealment from a creditor of fraudulent acts which, if known, would enable such creditor to avoid the debtor’s discharge, do not consti- tute such a fraudulent concealment as to take the case out of the statute of limitations. Rice v. Burt, 4 Cush. 208. Nor is omission to disclose a trespass upon real estate, there being no fiduciary relation between the parties, and the owner having the means of knowing the facts, and nothing having been done to prevent his knowing them, such a con- cealment. Nudd v. Hamblin, 8 Allen, 180. Nor, it is held, is the in- vestment of money by an attorney, instead of remitting it as directed. Fleming v. Culbert, 46 Pa. St. 498. The concealment must be after the cause of action has accrued. Misrepresentation before and silence after will not prevent the running of the statute, Stanley v. Stanton, 36 Ind. 445. Where the president of a bank falsely represented to its direc- tors that he had paid the bank’s money to one entitled to receive it, when in fact he had appropriated it to his own use, this was held a fraudulent concealment of the cause of action under the Massachusetts statute. Atlantic National Bank v. Harris, 118 Mass, 147. A customer’s concealment and denial, by his agent, of the fact of his having been overpaid upon his bank check is such a fraudulent concealment of the cause of action as to prevent the statute running in his favor in a suit against him by the bank to recover such overpayment. Manufacturers’ Nat. Bank v. Perry, 144 Mass. 313. If false representations as to the contents of public records, as that the defendant has been authorized by the Probate Court to convey real estate as administrator, constitute a _cause of action, they are not sufficient to prove a subsequent fraudulent concealment of the cause of action within the meaning of the statute. Walker v. Soule, 188 Mass. 570. 550 PROCESS, PARTIES, AND PLEADING. [CHAP. Ix. exception, to be acted upon by courts of law and equity, ac- cording to the nature of their respective jurisdictions. Such, it seems to me, is the reason on which the exception is built, and not merely that there is an equity binding upon the con- science of the party, which the statute does not reach or con- trol.”1 Similar views of the law on this subject obtain in Maine,2 New Hampshire,? Pennsylvania,‘ Illinois,> Indiana, and Texas.’ § 391. Reasons and Applications of the Rule.— The statute has been held in some cases not to be a defence where it ap- pears that the creditor has actively induced the debtor to relax his vigilance, or has procured the action to be delayed by promises to the creditor of settlement and adjustment.’ But it would seem that these cases carry the rule too far, and the weight of authority is in favor of the rule that the effect of the statute will not be avoided, either at law or in equity, unless there has been, at least, fraudulent concealment of the cause of action by the defendant.® Thus in Massachusetts the 1 Per Story, J.,in Sherwood v. Sutton, 5 Mason (C. C.), 1438. See also Mitchell v. Thompson, 1 McLean (C. C.), 85. 2 Cole v. McGlathry, 9 Me. 131; Bishop v. Little, 5 id. 362; Morton v. Chandler, 8 id. 9. 3 Douglas v. Elkins, 28 N. H. 26; Bowman v. Sanborn, 18 id. 205. 4 Harrisburg Bank v. Forster, 8 Watts, 12; Rush v. Bar, 1 id. 110; Pennock v. Freeman, id. 401; Jones v. Conoway, 4 Yeates, 109; McDowell v. Young, 12 8S. & R. 128. 5 Campbell v. Vining, 28 Ill. 525. ® Raymond v. Simondson, 4 Blackf. (Ind.) 85. 7 Andrews v. Smithwick, 34 Tex. 544, 8 McAlpine v. Hedges, 21 Fed. Rep. 689; Abell v. Penn. Mut. Life Tns. Co., 18 W. Va. 400; State v. Murray, 9 Baxter (Tenn.),209; Brown v, Brown, 61 Tex. 45. ® Bishop v. Little, 8 Me. 405; Chapman v. Butler, 22 id. 191. To the point that mere concealment of the cause of action will not avoid the effect of the statute, see, in addition to cases already cited, Free- holders v. Veghte, 44 N. J. L. 509; Taylor v. Robinson, 69 Ala. 269; Given v. Whitmore, 73 Maine, 374; Printup v. Alexander, 69 Ga. 553. Upon demurrer setting up the statute, knowledge of the fraud more than six years prior to beginning suit will not be inferred from the fact that the alleged fraud occurred before that period. Sheldon v. Keokuk Packet Co., 10 Biss. (C. C.) 470. SEC. V.] OF PLEADING IN EQUITY. 551 court, adopting the expression of the Commissioners on the Revised Statutes, say : “In many cases of implied assumpsits the cause of action may remain for a long time unknown to the plaintiff; but unless that knowledge was fraudulently con- cealed from him, it was never supposed that he could bring his action after the expiration of six years.”1 And it seems to be the rule that mere ignorance of the fact, without more, makes no difference in the legal right, and does not bring the claim within the exceptions to the statute of limitations.? 1 Sturgis v. Preston, 184 Mass. 372; and see Banning on Limitations of Actions, 21. 2 Adams v. Ipswich, 116 Mass. 570. In the case of Harrisburg Bank v. Forster, 8 Watts, 12, the court held that the cashier of a bank could not avail himself of the statute to defeat an action by the bank on his note, unless he could show clearly a performance of all his duties in rela- tion to the note, by exhibiting the same as due and unpaid, to the board of directors. It was held that the knowledge of the president, or of the individual directors of the bank, that the note was due and unpaid, was not a fact from which negligence could be inferred on the part of the bank, so as to allow the operation of the statute in favor of the cashier. APPENDIX. THE ENGLISH ACTS OF LIMITATION. ACT 32 HEN. VIII. CH. 2. No person shall sue, have, or maintain any writ of right or make any prescription, title, or claime to, for any Mannors, Lands, Tene- ments, Rents, Annuities, Commons, Pensions, Portions, Corodies, or other Hereditaments of the possession of his or their Ancestors or pre- decessors ; and declare and alleadge any further seisin or possession of his or their Ancestor or predecessor, but onley of the seisin or posses- sion of his Ancestor or predecessor, which hath beene, or now is, or shall be seised of the said Mannors, Lands, &c., or other Heredita- ments within sixtie yeares next before’ the deste of the same writ, or next before the said prescription title or claime so sued, commenced, brought, made, or had. No person or persons shall sue, have, or maintaine any Assesse of Morduncestor, Cosinage, Ayel, writ of entrie upon disease done to any of his Ancestors or predecessors, or any other action possessory upon the possession of any of his Ancestors or predecessors, for any Man- nors, Lands, Tenements, or other Hereditaments of any further seisin or possession of his or their Ancestor or predecessor, but onley of the seisin or possession of his or their Ancestor or predecessor, which was, or hereafter shall be seised of the same Mannors, Lands, Tenements, or other Hereditaments within fifty years next before the teste of the original of the same writ to bee brought. No person nor persons shall sue, have, or maintaine any action for any Mannors, Lands, Tenements, or other Hereditaments of or upon his or their own seisin above thirty years next before the teste of the originall of the same writ to be brought, &c. Nor shall make any avowry or cognisance for any Rent, suite, or service, and alleadge any seisin of any suite of service in the same avowry or cognizance in the possession of his or their Ancestors or 554 APPENDIX. predecessor or predecessors, or in his own possession, or in the pos- session of any other whose estate shall pretend or claim to have above fiftie years next before the making of the said Avowry or cognisance. All formedons in reverter, formedons in remainder, and Scire facias, upon fines of any Mannors, Lands, Tenements, or other Heredita- ments, shall bee sued and taken within fiftie years next after the title and cause of action fallend, and at no time after the said fiftie yeares passed. If any person or persons doe at any time sue any of the said actions or writs for any Mannor, Lands, Tenements, or other Hereditaments, or make any avowry, cognisance, prescription, title, or claime of, or for any rent, suite, service, or other Hereditaments, and cannot prove that he or they, or his or their Ancestors or predecessors were in actuall possession or seisin of, or in the same Mannors, Lands, Tenements, and Hereditaments, and at any time within the yeares before limited in this act, and in manner and forme aforesaid ; if the same be traversed or denied by the partie, person, or defendant, then after such triall therein had, all and every such person and persons and their heires, shall from thenceforth be utterly barred forever of all and every the said writs, actions, avowries, cognisance, prescription, title, and claim hereafter to be sued, had, or made of, and for the same Mannors, Lands, &c., or other the premises, or any part of the same. Provided always, that every person and persons which now have any of the said actions, writs, avowries, Scire facias, Com. Title, cog- nisance, title, claim, or prescription depending ; or that shall hereafter bring any of the said actions, or make any of the said avowries, pre- scription, title, &c., at any time before the Feast of the Ascention of our Lord, 1546, shall alleadge the seisin of his or their Ancestors or predecessors, and his owne possession and seisin, and have also all other like advantage to all intents and purposes in the same writs, actions, avowries, cognisances, and prescriptions, titles, and clayme, as he or they might have had at any time before the making of this Statute. Provided also, that if any person being within the age of twenty-one yeares, covert, baron, or in prison, or out of this Realm of England, nor having cause to sue or bring any of the said writs, actions, or to inake any avowries, cognisances, prescriptions, titles, or claymes, that such person or persons may sue, commence, or bring any of the said ‘writs or actions, or make any of the said avowries, cognisances, pre- scriptions, title, or claime at any time within six yeares next after such person, not being within age shall accomplish the age of 21 yeares, or within six yeares next after such person now being in prison shall bee APPENDIX. 555 enlarged, or never being out of the Realme, come into the Realme. And that every such person in their said actions, writs, avowries, cog- nisances, prescriptions, title or claime to be made, &c., within the said six yeares, shall alleadge within the said six yeares, the seisin of his or their Ancestors or predecessors, or of his owne possession, or of the possession of those whose estate hee shall then clayme. And also within the same six yeares shall have all and every such advantages in the same as he or they might have had before the making of this act.? Provided, also, that if it happen the said person now being within age covert baron in prison or out of this Realme, having cause to sue or bring any of the said writs, avowries, cognisances, descriptions, &c. to die within age, or during condition, &c. or to disease within six yeares next after such person shall attain his full age, or be at large, &c. and no determination or judgment had of such titles, actions, or rights to them so accrued, then the next heire to such person or per- sons shall have and enjoy such liberty and advantage to sue, &c. within six years next after the death of such person or persons now impris- oned, &c. in such manner as the same infant after his full age, or the said woman covert after, &c. should or might have had within six years then next ensuing, by virtue of the provision last before rehearsed. 1 Brook, in his ‘‘ Reading ”’ upon this statute, gives the following con- struction of its provisions in favor of the rights of infants, and others under disability: ‘A man seised in right of his wife is disseised, or makes a discontin, and liveth sixty-one years, he and his wife die, the heire of the wife shall not have action, claime, nor enter. Because none is aided but those which were covert at the time of the statute, &c., and the haire doth not claime upon the seisin of his ancestor beyond sixty years, and an entry is aclaime.” Brook, Reading, 60. ‘If tenant for life, or an ideot, or a man imprisoned, or beyond sea, are disseised, and suffer the sixty years to passe, and dyeth, their heire, nor those in the re- version, shall not make claime, nor enter, nor have action; because, if their entries are taken away, they shall be barred in perpetuum, for the reason aforesaid.’? Ibid. 61. ‘If an infant be seised at fourteen yeares, and hath issue, and dyeth before twenty-one yeares, and every issue one after the other, until sixty yeares are past, their heire shall never have action nor claime; because, an infant, or the like, are not excepted, but only those which were infants tempore statuti.” Ibid. ‘‘ An infant sells his land by deed indented, and inrolls the deed within sixe moneths, he being within age, the vendee enters, the infant ousts him, and continueth by sixty yeares, the vendee may re-enter, and retraverse, and, if he be ousted, may have a writ of right.”’ 556 APPENDIX. Provided, also, that if any person before Ascension, 1546, sue or commence any of the said writs, &c. or make any avowry, &c. and the same happen by the death of any of the sayd parties, to bee abated be- fore judgment or determination thereof, then the same person or per- sons being demandants or avowants, or making such title prescription, &c. being then alive, and if not, then the next heire of such person so deceased may pursue his action, and make his avowry, &c. upon the same matter within one yeare next after such action or suite abated, and shal enjoy all such advantage to make their said titles within the said one yeare, as the demandant demandants in such writs, &c. should or might have had or enjoyed in the said former action or suite. Provided, furthermore, that if any false Verdict happen hereafter to be given or made in any of the said actions, suites, avowries, prescrip- tions, titles, or claymes; that then the partie grieved by reason of the same, shall and may have his Attaint upon every such Verdict so given or made, and the plaintiffe in the Attaint upon judgment for him given, shall have his recovery, execution, and other advantage in like manner as heretofore hath been used, anything in this Statute contained, to the contrary notwithstanding, STATUTE 21 JAMES I. CH. 16. “AN ACT FOR LIM-— ITATION OF ACTIONS, AND FOR AVOIDING OF SUITS IN LAW.” For quieting of men’s estates and avoiding of suits, be it enacted by the King’s most excellent majesty, the Lords spiritual and temporal, and Commons, in this present Parliament assembled, that all writs of formedon in descender, formedon in remainder, and formedon in rever- ter, at any time hereafter to be sued or brought, of, or for any man- nors, lands, tenements, or hereditaments, whereunto any person or persons now hath or have any title, or cause to have or pursue any such writ, shall be sued or taken within twenty years next after the end of this present session of Parliament: And after the said twenty years expired, no person or persons, or any of their heirs, shall have or maintain any such writ, of or for any of the said manors, lands, tenements, or hereditaments; (2) and that all writs of formedon in descender, formedon in remainder, formedon in reverter, of any man- ors, lands, tenements, or other hereditaments whatsoever, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happening, shall be sued or taken within twenty years APPENDIX, 557. next after the title and cause of action first descended or fallen, and at no time after the said twenty years ; (3) and that no person or persons that now hath any right or title of entry into any manors, lands, tene- ments, or hereditaments now held from him or them, shall thereinto en- ter, but within twenty years next after the end of this present session of Parliament, or within twenty years next after any other title of entry accrued; (4) and that no person or persons shall at any time hereafter, make any entry into any lands, tenements, or hereditaments, but within twenty years next after his or their right or title, which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made; any former law or statute to the contrary notwithstanding. II. Provided, nevertheless, That if any person or persons that is or shall be entitled to such writ or writs, or that hath or shall have such right or title of entry, be, or shall be, at the time of the said right or title first descended, accrued, come, or fallen within the age of one-and- twenty years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action, or make his entry as he might have done before this act; (2) so as such person and persons, or his or their heir and heirs, shall, within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said ten years. : III. And be it further enacted, That all actions of trespass guare clausum fregit, all actions of trespass, detinue, action, sur trover, and replevin for taking away of goods and cattle, all actions of account, and upon the case, other than such accounts as concern the trade ot merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without spe- ciality ; all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after the end of this present session of Parliament, shall be commenced and sued within the time and limitation hereafter expressed, and not after; (that is to say,) (2) the said actions upon the case (other than for slander), and the said actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass guare clau- sum fregit, within three years next after the end of this present session of Parliament, or within six years next after the cause of such actions 558 APPENDIX. or suit, and not after; (3) and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within one year next after the end of this present session of Parliament, or within four years next after the cause of such actions or suit, and not after; (4) and the said action upon the case for words, within one year after the end of this present session of Parliament, or within two years next after the words spoken, and not after. IV. And, nevertheless, be it enacted, That if in any the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plain- tiff, that he take nothing by his plaint, writ, or bill; or if any the said actions shall be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after. V. And be it further enacted, That in all actions of trespass quare clausum fregit, hereafter to be brought, wherein the defendant or defendants shall disclaim in his or their plea to make any title or claim to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence, or involuntary, the defendant or defendants shall be permitted to plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass before the action brought, where- upon, or upon some of them, the plaintiff or plaintiffs shall be enforced to join issue; (2) and if the said issue be found for the defendant or defendants, or the plaintiff or plaintiffs shall be nonsuited, the plaintiff or plaintiffs shall be clearly barred from the said action or actions, and all other suits concerning the same. VI. And be it further enacted by the authority aforesaid, That in all actions upon the case for slanderous words, to be sued or prose- cuted by any person or persons in any the courts of record at West- minster, or in any court whatsoever, that hath power to hold plea of the same, after the end of this present session of Parliament, if the jury upon the trial of the issue in such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shil- lings, then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so given or assessed amount unto, without any further increase of the same; any law, statute, custom, or usage to the contrary in anywise notwithstanding, APPENDIX. 559 VII. Provided, nevertheless, and be it further enacted, That if any person or persons that is or shall be entitled to any such action of trespass, detinue, action sur trover, replevin, actions of account, actions of debt, actions of trespass for assault, menace, battery, wounding, or imprisonment, actions upon the case for words, be, or shall be, at the time of any such cause of action given or accrued, fallen or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their com- ing to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such imped- iment should be done. ACT 4 ANNE, C. 16, §§ 17, 18, 19. (SzamEn’s WaGEs.) XVII. And be it further enacted, by the authority aforesaid, that all suits and actions in the Court of Admiralty for seamen’s wages, which shall become due after the said first day of Trinity term, shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not afterwards. XVIII. Provided nevertheless, and be it enacted, that if any per- son or persons who is, or shall be, entitled to any such suit or action for seamen’s wages be, or shall be, at the time of any such cause of suit of action, accrued, fallen, or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be set at liberty to bring the same actions, so as they take the same within six years next after their coming to, or being of full age, discovert, of sane memory, at large, and returned from beyond the seas. XIX. And be it further enacted, by the authority aforesaid, that if any person or persons against whom there is or shall be any such cause of suit or action for seamen’s wages, or against whom there shall be any cause of action, of trespass, detinue, actions for trover or re- plevin, for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract with- out specialty, of debt for arrearages of rent, or assault, menace, bat- tery, wounding, and imprisonment, or any of them, be, or shall be, 560 APPENDIX. at the time of any such cause of suit or action given or accrued, fallen, or come beyond the seas, that then such person or persons, who is, or shall be, entitled to any such suit or action, shall be at liberty to bring the said actions against such person and persons after their re- turn from beyond the seas, so as they take the same after their return from beyond the seas within such times as are respectively limited for the bringing of the said actions before by this act, and by the said other act made in the one-and-twentieth year of the reign of King James the First. ACT 9 GEORGE IIL, C. 16. (Tue Crown.) Be it enacted, etc., That the king’s majesty, his heirs or successors shall not at any time hereafter sue, impeach, question or implead any person or persons, bodies politick or corporate, for or in any wise con- cerning any manors, lands, tenements, rents, tythes or hereditaments whatsoever (other than liberties or franchises), or for or in any wise concerning the revenues, issues or profits thereof, or make any title, claim, challenge or demand of, in or to the same or any of them, by reason of any right or title which hath not first accrued and grown, or which shall not hereafter first accrue and grow, within the space of sixty years next before the filing, issuing or commencing of every such action, bill, plaint, information, commission or other suit or pro- ceeding as shall at any time or times hereafter be filed, issued or com- menced for recovering the same, or in respect thereof; unless his majesty, or some of his progenitors, predecessors or ancestors, heirs or successors, or some other person or persons, bodies politick or cor- porate, under whom his majesty, his heirs or successors, anything hath or lawfully claimeth, or shall have or lawfully claim, have or shall have been answered by force and virtue of any such right or title to the same, the rents, revenues, issues or profits thereof, or the rents issues or profits of any honour, manor or other hereditament, whereof the premises in question shall be part or parcel, within the said space of sixty years; or that the same have or shall have been duly in charge to his majesty, or some of his progenitors, predecessors or ancestors, heirs or successors, or have or shall have stood insuper o record within the said space of sixty years. * * * * * * * * APPENDIX. 561 ACT 9 GEORGE IV,, C. 14. (Lorp TENTERDEN’s Act.) “An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements.” Section 1. Whereas, by an Act passed in England in the twenty- first year of the reign of King James the First, it was, among other things, enacted, that all actions of account and upon the case, other than such accounts as concern the trade of merchandise between mer- chant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, and all ac- tions of debt for arrearages of rent, should be commenced within three years after the end of the then present session of parliament, or within six years next after the cause of such actions or suit, and not after ; and whereas a similar enactment is contained in an Act passed in Ireland in the tenth year of the reign of King Charles the First; and whereas various questions have arisen in actions founded on simple contract, as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments, and it is expedient to prevent such questions, and to make a provision for giving effect to the said enactments and to the intention thereof: Be it therefore enacted, by the king’s most excellent majesty, by and with the advice and consent of the lords spiritual and tem- poral and commons in this present parliament assembled, and by the authority of the same, that in actions of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continu- ing contract, whereby to take any case out of the operation of the said enactments or either of them, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing, to be signed by the party chargeable thereby ; and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint con- tractor, executor, or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them: Provided, always, that nothing herein contained shall alter or take away, or lessen the effect of, any payment of any principal or interest made by any person whatsoever: Provided, also, that in actions to be commenced against two or more 36 562 APPENDIX. such joint contractors, or executors or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited Acts, or this Act, as to one or more of such joint con- tractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promisé, or otherwise, judgment may be given and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. ' Sect. 2. If any defendant or defendants, in any action on any simple contract, shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited Acts or of this Act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same. Sect. 3. No indorsement or memorandum of any payment written or made after the time appointed for this Act to take effect upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes. Sect. 4. That the said recited Act, and this Act, shall be deemed and taken to apply to the case of any debt on simple contract alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. ACT 3 AND 4 WILLIAM IV., Cu. 27.3 (Rest Property.) I. Be it enacted, that the words and expressions hereinafter men- tioned, which in their ordinary signification have a more confined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act shall exclude such construction, be interpreted as follows: (that is to say), the word “land” shall extend to manors, messuages, and all other corporeal hereditaments whatso- ever, and also to tithes (other than tithes belonging to a spiritual and 1 See Real Property Limitation Act, 1874; Act 87 and 38 Vict. c. 57, post. APPENDIX. 563 eleemosynary corporation sole), and also to any share, estate, or inter- est in them or any of them, whether the same shall be a freeholder or chattel interest, and whether freehold or copyhold, or held according to any other tenure; and the word “rent” shall extend to all heriots, and to all services and suits for which a distress may be made, and to all annuities and periodical sums of money charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole) ; and the person through whom another person is said to claim shall mean any person by, through, or under, or by the act of whom, the person so claiming became entitled to the estate or interest claimed, as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat; and the word “ person” shall extend to a body politic, corporate or collegiate, and to a class of creditors or other persons as well as an individual ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. II. That after the 31st day of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. 1 1 A rent reserved on a’ demise is not within this section. Grant v. Ellis, 9 M. & W. 113. Where a person is entitled under a will to an annuity charged upon land, his right is barred under the second section of the Act, though he has not received any part of the annuity at the end of twenty years from the time when his right to make a distress first accrued; for, though the third section of the Act excepts the case of a will in mentioning the periods from which the statute shall be deemed to run, yet the second section of the Act is not governed and controlled by the third, but simply explained and construed; the object of that sec- tion being to explain and give a construction to the enactment contained in the second clause, as to the time at which the right to make a distress 564 APPENDIX. III. That in the construction of this Act, the right to make an entry or distress, or bring an action to recover any land or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned ; (that is to say,) when the person claiming such land or rent, or some person through whom he claims, shall, in respect of the estate or inter- est claimed, have been in possession or in receipt of the profits of said land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received; and when the person claiming such land or rent shall claim the estate or interest. of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death ; and when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims, by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instru- ment shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument; and when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession; and when the person claiming such land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be for any rent shall be deemed to have accrued, in those cases only in which doubt or difficulty might occur, leaving every case which plainly falls within the general words of the second section, but is not included amongst the instances given by the third, to be governed by the opera- tion of the second. James v. Salter, 4 Scott, 168; s. c. 3 Bing. N.C. 544, APPENDIX. 565 deemed to have first accrued when such forfeiture was incurred or such condition was broken. IV. Provided, always, that when any right to make an entry or dis- tress, or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition shall have first accrued in respect of any estate or interest in reversion or remainder, and the land or rent shall not have been recovered by virtue of such right, the right to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued in respect of such estate or interest, at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened. V. Provided, also, that a right to make an entry or distress, or to bring an action to recover any land or rent, shall be deemed to have first accrued in respect of an estate or interest in reversion, at the time at which the same shall have become an estate or interest in pos- session by the determination of any estate or estates, in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwithstanding the person claiming such land, or some person through whom he claims, shall, at any time previously to the creation of the estate or estates which shall have determined, have been in possession or receipt of the profits of such land, or in receipt of such rent.? VI. That, for the purposes of this Act, an administrator claiming the estate or interest of the deceased person of whose chattels he shall be appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration. VII. That when any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued either at the 1 A lessor is a reversioner within the section when he merely discon- tinues the receipt of the rent; he has, therefore, twenty years from the determination of the lease within which to claim. Davy v. Oxenham, 7 M. & W. 181. And the discontinuing the receipt of rent for more than twenty years, where there is a lease, does not affect the right to recover the arrears of rent, as the second section does not apply to rent under a demise. Grant v. Ellis, 9 M. & W. 113. 2 A lessor is within this section when the rent has not been received adversely. Davy v. Oxenham, 7-M. & W. 181, 566 APPENDIX. determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined: Provided always, that no mort- gagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee. VIII. That when any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant from year to year or other period, without afy lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued at the deter- mination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy shall have been received (which shall last happen). IX. That when any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, by virtue of a lease in writing, by which a rent amounting to the yearly sum of twenty shil- lings or upwards shall be reserved, and the rent reserved by such lease 1 Tt has been decided that the tenancy at will or sufferance must be deemed to have terminated at all events at the end of the first year, unless otherwise determined before that period. Bennett v. Turner, 7 M. & W. 226, Turner v. Bennett, 9 id. 643. And it would seem to be clear from the statute that at the end of twenty years from that time, that is, at the end of twenty-one years from the commencement of the tenancy at will, the statute would be a complete bar, unless the party claiming could prove either a payment of rent, or an acknowledgment in writing. Some question has, however, been raised upon the right con- struction of this section, by decisions relative to tenancies at will. Thus, it has been held in two cases, that a purchaser either let into, or who takes possession under a contract of purchase, and who is strictly a ten- ant at will (Stanway v. Rock, 4 Man. & G. 80; s. c. Car. & M. 549), has, and can gain, no adverse title against the vendor. Milburn »v. Ed- gar, 2 Scott, 732; Counsell v. Caperton,-9 Car. & P.112. But see Stan- way v. Rock, supra. And where A, in 1817, let B into possession of lands, as tenant at will, and in 1827 A entered upon the land without B’s consent, and cut and carried away stone therefrom, it was held, on error in the Exchequer Chamber, that this entry amounted to a determination of the estate at will, and that B thenceforth became tenant at sufferance, until by agreement, expressed or implied, a new tenancy was created be- tween the parties, and, therefore, that unless the fact of such new tenancy was found by the jury, an ejectment brought in 1839 was too late, inas- much as by the statute 38 & 4 Will. IV., c. 22, § 7, the right of action first accrued at the expiration of one year after the commencement of the original tenancy at will, that is, in 1818. Bennett v. Turner, supra. APPENDIX. 567 shall have been received by some person wrongfully claiming to be entitled to such land or rent in reversion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person righifully entitled thereto, the right of the person entitled to such land or rent subject to such lease, or of the person through whom he claims, to make an entry or distress, or to bring an action after the determi- nation of such lease shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid; and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled. X. That no person shall be deemed to have been in possession of any land, within the meaning of this Act, merely by reason of having made an entry thereon. XI. That no continual or other claim upon or near any land shall preserve any right of making an entry of distress, or of bringing an action. XII. That when any one or more of several persons entitled to any land or rent as coparceners, joint-tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them.! XIII. That when a younger brother or other relation of the person entitled as heir to the possession or receipt of the profits of any land, or to the receipt of any rent, shall enter into the possession of receipt thereof, such possession or receipt shall not be deemed to be the posses- sion or receipt of or by the person entitled as heir. XIV. Provided always, that when any acknowledgment of the title of the person entitled to any land or rent shall have been given to him or his agent in writing, signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such posses- sion or receipt of or by the person by whom such acknowledgment shall have been given, shall be deemed, according to the meaning of this Act, to have been the possession or receipt of or by the person to This section is retrospective in its operation. Culley v. Taylorson, 3 Perry & D. 539. 568 APPENDIX. whom or to whose agent such acknowledgment shall have been given at the time of giving the same, and the right of such last-mentioned person, or any person claiming through him, to make an entry or dis- tress, or bring an action to recover such land or rent, shall be deemed to have first accrued at and not before the time at which such acknowl- edgment, or the last of such acknowledgments if more than one, was given.! XV. Provided also, that when no such acknowledgment as afore- said shall have been given before the passing of this Act, and the pos- session or receipt of the profits of the land, or the receipt of the rent, shall not at the time of the passing of this Act have been adverse to the right or title of the person claiming to be entitled thereto, then such person, or the person claiming through him, may, notwithstand- ing the period of twenty years hereinbefore limited shall have ex- pired, make an entry or distress, or bring an action to recover such land or interest at any time within five years next after the passing of this Act. XVI. Provided always, that if at the time at which the right of any person to make an entry or distress, or bring an action to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned (that is to say), infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, then such person, or the person claiming through him, may, notwithstanding the period of twenty years hereinbefore limited shall have expired, make an entry or dis- tress, or bring an action to recover such land or rent, at any time within ten years next after the time at which the person to whom such right shall first have accrued as aforesaid shall have ceased to be under any such disability, or shall have died (which shall have first happened). XVII. Provided nevertheless, that no entry, distress, or action shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole 1 An answer in chancery, filed within twenty years by the person through whom the defendant claims, in a suit between him and this plaintiff concerning the same property, is an acknowledgment within this statute. Goode v. Job, 1 Ellis & E. 6. APPENDIX. 569 term of such forty years, or although the term of ten years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired. XVIII. Provided always, that when any person shall be under any of the disabilities hereinbefore mentioned, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an en- try or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person. XIX. That no part of the United Kingdom of Great Britain and Treland, nor the Islands of Man, Guernsey, Jersey, Alderney, or Sark, nor any island adjacent to any of them (being part of the domin- ions of his Majesty), shall be deemed to be beyond seas within the meaning of this Act. XX. That when the right of any person to make an entry or dis- tress, or bring an action to recover any land or rent to which he may have been entitled for an estate or interest in possession, shall have been barred by the determination of the period hereinbefore limited, which shall be applicable in such case, and such person shall, at any time during the said period, have been entitled to any other estate, in- terest, right, or possibility, in reversion, remainder, or otherwise, in or to the same land or rent, no entry, distress, or action shall be made or brought by such person, or any person claiming through him, to recover such land or rent, in respect of such other estate, interest, right, or pos- sibility, unless in the mean time such land or rent shall have been re- covered by some person entitled to an estate, interest, or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession. XXI. That when the right of a tenant in tail of any land or rent to make an entry or distress, or to bring an action to recover the same, shall have been barred by reason of the same not having been made or brought within the period hereinbefore limited, which shall be appli- cable in such case, no such entry, distress, or action shall be made or brought by any person claiming any estate, interest, or right which such tenant in tail might lawfully have barred. 1 A fine with proclamations by a tenant in tail in possession creates a discontinuance, and the legal fee descends to his heirs at law, the remain- 570 APPENDIX. XXII. That when a tenant in tail of any lana or rent, entitled to recover the same, shall have died before the expiration of the period hereinbefore limited, which shall be applicable in such case, for mak- ing an entry or distress, or bringing an action to recover such land or rent, no person claiming any estate, interest, or right, which such ten- ant in tail might lawfully have barred, shall make an entry or distress, or bring an action to recover such land or rent but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action. XXIII. That when a tenant in tail of any land or rent shall have made an assurance thereof, which shall not operate to bar an estate or estates, to take effect after or in defeasance of his estate tail, and any person shall, by virtue of such assurance, at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the receipt of such rent, and the same per- son, or any other person whatsoever (other than some person entitled to such possession or receipt in respect of an estate, which shall have taken effect after or in defeasance of the estate tail), shall continue or be in such possession or receipt for the period of twenty years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail or the person who would have been entitled to his estate tail if such assurance had not been ex- ecuted, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twenty years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right, to take effect after or in defeasance of such estate tail. XXIV. That after the said 31st of December, 1833, no person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which, by virtue of the provisions hereinbefore contained, he might have made an entry or distress, or brought an action to recover the same respectively if he had been entitled at law to such estate, interest, or right in or to the same as he shall claim therein in equity. XXV. Provided always, that when any land or rent shall be vested in a trustee upon any express trust, the right of the cestud que trust, or any person claiming through him, to bring a suit against the trustee, or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of this Act, der-men therefore cannot maintain ejectment, but are driven to their formedon, which they may bring under the 38th section within the time thereby given. Gilbert v. Ross, 7M. & W. 102. APPENDIX. 571 at and not before the time at which such land or rent shall haye been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser, and any person claiming through him." XXVI. That in every case of a concealed fraud, the right of any person to bring a suit in equity for the recovery of any land or rent, of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which such fraud shall or with reasonable dili- gence might have been first known or discovered; provided that noth- ing in this clause contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents, on account of fraud against any bona fide purchaser for valuable consideration, who has not assisted in the commission of such fraud, and who, at the time that he had made the purchase, did not know, and had no reason to believe, that any such fraud had been committed. XXVII. Provided always, that nothing in this Act’contained shall be deemed to interfere with any rule or jurisdiction of courts of equity, in refusing relief on the ground of acquiescence or otherwise to any person whose right to bring a suit may not be barred by virtue of this Act. XXVIII. That when a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent, com- prised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such pos- session or receipt, unless in the mean time an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, in writing signed by the mortgagee or the person claiming through him; and in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons; but where there shall be more than 1 This section is not applied to implied trusts. Stanway v. Rock, 4 Man. & G. 80; s.c. Car. & M. 549. 572: APPENDIX. one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent, by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeas- ance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undi- vided or divided part of the money or land or rent; and where such of the mortgagees or persons aforesaid as shall have given such acknowl- edgment shall be entitled to a divided part of the land or rent com- prised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged money, the mortgagor or mort- gagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money, which shall bear. the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage.! 1 By the Act 7 Will. IV. & 1 Vict. c. 28, part payment of principal or interest is made equivalent to an acknowledgment in writing so as to bar the statute. Where a mortgagee in possession for six years, without acknowledgment of mortgagor’s title, purchased the interest of the tenant for life of the equity of redemption, and continued in possession for twenty years longer, it was held that such possession was not adverse during the existence of the life estate so purchased, and that the statute of 3 and 4 Will. 1V. c. 27, § 28, was not, therefore, a bar to any suit for redemption by the remainder- man or reversioner. Hyde v. Dallaway, 2 Hare, 528 This section has been explained by the Act 7 Will. IV. and 1 Vict., c. 28, infra, which, reciting that doubts had arisen on the subject, enacts, that a mortgagor may recover the mortgaged land at any time within twenty years after the last payment of principal or interest, though his right of entry accrued more than twenty years ago. The statute runs in general from the date of the mortgage, and not from the time when de- fault made, even though there be a covenant that the mortgagee may quietly enjoy after default, as the land passes by the mortgage, and the mortgagee has therefore a right of entry from the date; if, however, there is a proviso that the mortgagor shall retain possession until default, the rule would of course be otherwise. Roylance v. Lightfoot, 8 M. & W. 553. APPENDIX. 573 XXIX. Provided always, that it shall be lawful for any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other spiritual or eleemosynary corporation sole, to make an entry or dis- tress, or to bring an action or suit, to recover any land or rent within such period as hereinafter is mentioned next after the time at which the right of such corporation sole, or of his predecessor, to make such entry or distress or bring such action or suit, shall first have accrued ; that is to say, the period during which two persons in succession shall have held the office or benefice, in respect whereof such land or rent shall be claimed, and six years after a third person shall have been ap- pointed thereto, if the times of such two incumbencies and such term of six years taken together shall amount to the full period of sixty years, and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will with the time of the holding of such two persons and such six years, make up a full period of sixty years ; and after the said 31st of December, 1833, no such entry, distress, action, or suit shall be made or brought at any time beyond the termination of such period. XXX. That after the said 31st of December, 1883, no person shall bring any guare impedit or other action or any suit to enforce a right to present to or bestow any church, vicarage, or other ecclesiastical benefice, as the patron thereof, after the expiration of such period as hereinafter is mentioned ; that is to say, the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years ; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expi- ration of such further time as with the times of such incumbencies will make up the full period of sixty years. XXXI. Provided always, that when on the avoidance, after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presentation or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty or the ordinary by reason of a lapse, such last-mentioned clerk shall be deemed to have obtained possession adversely to the right of presentation or gift of such patron as aforesaid ; but when a clerk shall have been presented by his Ma- jesty upon the avoidance of a benefice, in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this Act, be deemed a continuation of the incum- bency of the clerk so made bishop. 574 APPENDIX. XXXII. That in the construction of this Act every person claim- ing a right to present to or bestow any ecclesiastical benefice as patron thereof, by virtue of any estate, interest, or right, which the owner of an estate tail in the advowson might have barred, shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action, or suit shall be lim- ited accordingly. XXXIII. Provided always, that after the said 31st of December, 1883, no person shall bring any quare impedit, or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, un- less a clerk shall subsequently have obtained possession of such ben- efice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share, or right, held or derived under the same title. XXXIV. That at the determination of the period limited by this Act to any person for making an entry or distress, or bringing any writ of quare tmpedit, or other action or suit, the right and title of such person to the land, rent, or advowson, for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished. XXXV. That the receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee or any per- son claiming under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of this Act. XXXVI. That no writ of right patent, writ of quia dominus remisit curiam, writ of right in capite, writ of rightin London, writ of right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, writ de rationabilibus divisis, writ of right of ward, writ de consuetudinibus et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de theolonio, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in remainder, or in reverter, writ of assize of novel disseisin, nuisance, darrein-pre- sentment, juris utrum, or mort d’ancestor, writ of entry sur disseisin, in the quibus, in the per, in the per and cui, or in the post, writ of APPENDIX. 575 entry sur intrusion, writ of entry sur alienation, dum fuit non compos mentis, dum fuit infra etatem, dum fuit in prisona, ad communem legem, in casu proviso, in consimili casu, cui in vita, sur cui invitu, cui ante divortium, or sur cui ante divortium, writ of entry sur abatement, writ of entry, quare ejecit infra terminum, or ad terminum qui pra- teriit, or causa matrimonii prelocuti, writ of aiel, besaiel, tresaiel, cosinage, or nuper obiit, writ of waste, writ of partition, writ of disceit, writ of quod ei deforceat, writ of covenant real, writ of warrantia chartz, writ of curia claudenda, or writ per que servitia, and no other action real or mixed (except a writ of right of dower, or writ’ of dower unde nihil habet, or a quare impedit, or an ejectment), and no plaint in the nature of any such writ or action (except a plaint for free bench or dower), shall be brought after the 31st of December, 1834.1 XXXVII. Provided always, that when, on the said 31st of Decem- ber, 1834, any person, who shall not have a right of entry to any land, shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the 1st of June, 1835, in case the same might have been brought if this Act had not been made, notwithstanding the period of twenty years hereinbefore limited shall have expired. XXXVIITI. Provided, also, that when, on the said Ist of June, 1835, any person whose right of entry to any land shall have been taken away by any descent, cast, discontinuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st of June, 1835, but only within the period during which, by virtue of the provisions of this Act, an entry might have been made upon the same land by the person bringing such writ or action if his right of entry had not been so taken away. XXXIX. That no descent, cast, discontinuance, or warranty, which may happen or be made after the said 31st of December, 1833, shall toll or defeat any right of entry or action for the recovery of land. XL. That after the said 31st of December, 1833, no action or suit, or other proceedings shall be brought, to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy,” but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or 1 See Gilbert v. Ross, 7M. & W. 102. 2 See Intestates’ Estate Act, 23 & 24 Vict., c. 38, § 18, post. 576 APPENDIX. release of the same, unless in the mean time some part of the principal money, or some interest thereon, shall have been paid, or some ac- knowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent ; and in such case no such action, or suit, or proceeding, shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given. XLI. That after the said 31st of December, 1833, no arrears of dower, nor any damages on account of such arrears, shall be recovered or obtained by any action or suit, for a longer period than six years next before the commencement of action or suit. XLII. That after the said 31st of December, 1833, no arrears of rent or of interest, in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recov- ered by any distress, action, or suit, but within six years next after the same respectively shall have become due, or next after an acknowl- edgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent: Provided, nevertheless, that where any prior mortgagee, or other incumbrancer, shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to subsequent mortgage or other incumbrance, on the same land, the person entitled to such subsequent mortgage or incumbrance may re- cover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or in- cumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. XLIII. That after the said 31st of December, 1833, no person claiming any tithes, legacy, or other property, for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in any spiritual court to recover the same, but within the period during which he might bring such action or suit at law or in equity. XLIV. Provided, always, that this Act shall not extend to Scot- land; and shall not, so far as it relates to any right to permit to or bestow any church, vicarage, or other ecclesiastical benefice, extend to Treland. XLV. That this Act may be amended, altered, or repealed, during this present session. APPENDIX. 577 ACT 3 AND 4 WM. IV. C. 42, §§ 3-7. (SPECIALTIES.) III. And be it further enacted, that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any Jeri facias, and all actions for penalties, damages, or sums of money given to the party grieved by any Statute, now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of Parliament, shall be commenced and sued within the time and limitation hereinafter expressed and not after; (that is to say), the said actions of debt for rent upon an indenture of demise or covenant, or debt upon any bond or other specialty, actions of debt or sctre facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after: Provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited. IV. And be it further enacted, that if any person or persons that is or are or shall be entitled to any such action or suit or to such sc?re Jfacias, is or are or shall be at the time of any such cause of action accrued within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should according to the provisions of this act have done; and that if any person or persons against whom there shall be any such cause of action is or are or shall be at the time such cause of action acerued beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before 37 578 APPENDIX. limited after the return of such person or persons from beyond the seas. V. Provided always, that if any acknowledgement shall have been made either by writing, signed by the party liable by virtue of such indenture, specialty, or recognizance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid and so acknowledged to be due, within twenty years after such acknowledgment by writing, or part payment, or part satis- faction as aforesaid, or in case the person or persons entitled to such action shall, at the time of such acknowledgment, be under such disa- bility as aforesaid, or the party making such acknowledgment be at the time of making the same beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond the seas, as the case may be; and the plaintiff or plaintiffs in any such action, or any indenture, spe- cialty, or recognizance, may by way of replication state such acknowl- edgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute. VI. And nevertheless be it enacted, that if in any of the said actions judgment be given for the plaintiff and the same be reversed by error, or a verdict pass for the plaintiff and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill, or if in any of the said actions the defendant shall be outlawed and shall after reverse the outlawry, then in all such cases the party, plaintiff, his executors or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed or such judgment given against the plaintiff or outlawry reversed and not after. : VII. And be it further enacted, that no part of the United King- dom of Great Britain and Ireland, nor the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of his Majesty, shall be deemed to be beyond the seas within the meaning of this act, or of the act passed in the twenty-first year of the reign of King James the First, entituled an act for limitation of actions and for avoiding of suits in law. APPENDIX. 579 ACT 7 WM. IV. AND 1 VICT. C. 28. (MortTeaces.)} Be it enacted, etc.: That it shall and may be lawful for any person entitled to, or claiming under any mortgage of land within the defini- tion contained in the first section of the said act (8 & 4 Wm, IV. c. 27), to make an entry, or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last payment of any part of principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry, or bring such action or suit in equity, shall have first accrued, anything in the said act notwithstanding. ‘ ACT 16 AND 17 VICT. C. 118, §§ 20-27. (C. L. P. Amenpment Act, IRELAND.) XX. All actions for rent upon an indenture of demise, all actions upon a bond or other specialty, or upon any judgment, statute-right, statute-merchant, or recognizance shall be commenced and sued within twenty years after the cause of such actions or suits, or the recovery of such judgments, but not after; all actions grounded upon any lend- ing or contract, expressed or implied, without specialty, or upon any award where the submission is not by specialty or for any money levied by jfiert facias ; all actions of account, or for not accounting, other than for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants; all actions for direct injuries to real or personal property ; actions for the taking away or conversion of property, goods, and chattels; actions for libel, . malicious prosecution and arrest, seduction, criminal conversation ; and actions for all other causes which would heretofore have been brought in the form of action called trespass on the case, except as hereinafter excepted, shall be commenced and sued within six years after the cause of such actions, but not after; and all actions for assault, men- ace, battery, wounding, and imprisonment shall be commenced and sued within four years after the cause of such actions, but not after ; and all actions for words and for penalties, damages, or sums of money given to the party grieved by any statute now, or hereafter to be in 1 See Real Property Limitation Act, 387 & 38 Vict. c. 57, post. 580 APPENDIX. force, shall be commenced and sued within two years after the words spoken or the cause of such action or suit, but not after; and with respect to every subject-matter of a personal action not herein speci- fically provided for, being the subject-matter of a personal action, such actions in respect thereof shall be brought within the same period of limitation now applicable thereto, notwithstanding that such cause of action may be described or expressed in such statutes by reference to any particular form of action: Provided that nothing in this act con- tained shall alter the period of limitation of any action given by any statute where the time for bringing such action is, or shall be, by any statute specially limited. XXI. If in any of the said actions judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass, or upon judgment by default damages be assessed for the plaintiff, and upon matter alleged in arrest of judgment the judgment be given against the plaintiff, that he take nothing by his plaint, in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from time to time, within the period hereinbefore provided for in such action, or within a year after such judgment reversed, or judgment given against the plaintiff, and not after. XXII. If any person that is, or shall be, entitled to any such cause of action, is, or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, a married woman, of unsound mind, or beyond the seas, then such person shall be at liberty to bring the same action so as to commence the same within such time after the cessation of such disability, or his return from beyond seas, as other persons having no such impediment should, according to the provisions of this act, have done; and if any person or persons against whom there shall be any such cause of action is, or shall be, at the time such cause of action accrued, beyond seas, then the person entitled to any such cause of action shall be at liberty to bring the same against such person, within such time as is before limited after the return of such person from beyond seas. XXIII. If any acknowledgment shall have been, or shall be made, either by writing signed by the party liable by virtue of any indenture, specialty, judgment, statute-staple, or statute-merchant, or recog- nizance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall be lawful for the person entitled to bring his action for the money remaining unpaid and so acknowledged to be due, within twenty years after such acknowledgment by writing, or part payment, or part satis- APPENDIX. 581 faction as aforesaid, or in case the person entitled shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be at the time of making the same beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond seas, as the case may he; and the plaintiff in any such action on any indenture, specialty, judgment, statute-staple, or statute-mer- chant, or recognizance, may rely on such acknowledgment and that such action was brought within the time aforesaid in answer to a plea of the statute. XXIV. In actions grounded upon any simple contract no acknowl- edgment or promise shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the provisions of this act in relation to the limitation of actions, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and where there shall be two or more joint contractors or executors of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of this act, so as to be chargeable in respect or by reason only of any writtén acknowledgment or promise made and signed by any other or others of them: Provided always, that nothing herein contained shall alter or take away the effect of any payment of any principal or interest made by any person whomsoever. XXV. No indorsement or memorandum of any payment written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the provisions of this act in relation to the limitation of actions. XXVI. This act shall be deemed and taken to apply to the case of any debt alleged by way of set-off on the part of any defendant. XXVII. No memorandum or other writing made necessary by this act shall be deemed to be an agreement within the meaning of any statute relating to the duties on stamps. 582 APPENDIX. ACT 19 AND 20 VICT. C. 97, §§ 9-16. (Mercantite Law AMENDMENT ACT.) IX. All actions of account, or for not accounting, and suits for such account as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, or when such cause has already arisen, then within six years of the passing of this act; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforce- able by action or suit, by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit. X. No person or persons who shall be entitled to any action or suit with respect to which the period of limitation within which the same shall be brought is fixed by the act of the twenty-first year of the reign of King James the First, chapter sixteen, section three, or ‘by the act of the fourth year of the reign of Queen Anne, chapter sixteen, section seventeen, or by the act of the fifty-third year of the reign of King George the Third, chapter one hundred and twenty- seven, section five, or by the acts of third and fourth years of the reign of King William the Fourth, chapter twenty-seven, sections forty, forty-one, and forty-two, and chapter forty-two, section three, or by the act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty, shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the enact- ments aforesaid by reason only of such person or some one or more of such persons being at the time of such cause of action or suit accrued beyond the seas, or in the cases in which by virtue of any of the aforesaid enactments imprisonment is now a disability by reason of such person or some one or more of such persons being imprisoned at the time of such cause of action or suit accrued. XI. Where such cause of action or suit, with respect to which the period of limitation is fixed by the enactments aforesaid or any of them, lies against two or more joint debtors, the person or persons who shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time APPENDIX. Pav 583 such cause of action accrued beyond the seas, and such person or per- sons so entitled as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond the seas at the time the cause of action or suit accrued, after his or their return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid. XII. No part of the United Kingdom of Great Britain and Ire- land, nor the islands of Man, Guernsey, Jersey, Alderney and Sark, nor any islands adjacent to any of them, being part of the dominions of her Majesty, shall be deemed to be beyond seas within the meaning of the act of the fourth and fifth years of the reign of Queen Anne, chapter sixteen, or of this act. XIII. In reference to the provisions of the acts of the ninth year of the reign of King George the Fourth, chapter fourteen, sections one and eight, and the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, sections twenty- four and twenty-seven, an acknowledgment or promise made or con- tained by or in a writing signed by an agent of the party chargeable thereby, duly authorized to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. XIV. In reference to the provisions of the acts of the twenty-first year of the reign of King James the First, chapter sixteen, section three, and of the act of the third and fourth years of the reign of King William the Fourth, chapter forty-two, section three, and of the act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty, when there shall be two or more contractors or co-debtors, whether bound or liable jointly only, or jointly and severally, or executors, or adminis- trators of any contractor, no such co-contractor or co-debtor, executor or administrator, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of pay- ment of any principal, interest, or other money by any other or others of such co-contractors or co-debtors, executors, or administrators. XV. In citing this act, it shall be sufficient to use the expression, “The Mercantile Law Amendment Act, 1856.” XVI. Nothing in this act shall extend to Scotland. 584 APPENDIX. ACT 23 AND 24 VICT. C. 38, § 13. (Inrestate’s Estate Act.) XIII. This section, after reciting the 8 & 4 Wm. IV. c. 27, § 40, enacts that after the thirty-first day of December, 1860, no suit or other proceeding shall be brought to recover the personal estate of any person dying intestate, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the mean time some part of such estate or share, or some interest in respect thereof, shall have been accounted for or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit shall be brought but within twenty years after such accounting, payment, or acknowl- edgment, or the last of such accountings, payments, or acknowledg- ments, if more than one was made or given. ACT 23 AND 24 VICT. C. 53, §§ 1-2. (Ducuy or Cornwatt Act.) By section 1 all the provisions of the act 9 Geo. III. c. 16, as to limitation of actions and suits, are extended to the Duchy of Corn- wall, subject to the provisions of certain previous acts affecting the duchy. ACT 24 AND 25 VICT. C. 62. (THE Crown anp Ducuy or CornwaLL AMENDMENT ACT.) ? By section 1 the crown is not to sue after by reason of the lands having been in charge or stood insuper of record. By section 2 a similar provision is made as to the rights of the crown in respect of the Duchy of Cornwall. By section 3 provision is made as to the effect of answering of rents to the crown. Section 4 contains a reservation of reversionary interests in the crown and Duchy of Cornwall. 1 See Nullum Tempus (Ireland) Act 39 & 40 Vict. ¢. 37, post. APPENDIX. 585 ACT 37 AND 38 VICT. C. 57. (Reau Propverty Limitation Act, 1874.) An Act for the further Limitation of Actions and Suits relating to Real Property. Whereas, it is expedient further to limit the times within which actions or suits may be brought for the recovery of land or rent, and of charges thereon: Be it enacted, &c., as follows :— I. After the commencement of this act no person shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same. II. A right to make an entry or distress, or to bring an action or suit to recover any land or rent, shall be deemed to have first accrued in respect of an estate or interest in reversion or remainder, or other future estate or interest at the time at which the same shall have ‘become an estate or interest in possession, by the determination of any estate or estates in respect of which such land shall have been held or the profits thereof, or such rent shall have been received, not- withstanding the person claiming such land or rent, or some person through whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land, or in receipt of such rent. But if the person last entitled to any particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the profits of such land, or in receipt of such rent at the time when his interest determined, no such entry or distress shall be made, and no such action or suit shall be brought by any person becoming entitled in possession to a future estate or inter- est, but within twelve years next after the time when the right to make an entry or distress, or to bring an action or suit for the recov- ery of such land or rent, shall have first accrued to the person whose interest shall have so determined, or within six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those two peri- 586 APPENDIX. ods shall be the longer; and if the right of any such person to make such entry or distress, or to bring any such action or suit, shall have been barred under this act, no person afterwards claiming to be entitled to the same land or rent, in respect of any subsequent estate or inter- est under any deed, will, or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action or suit for the recovery of such land or rent, shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit to recover such land or rent. III. If at the time at which the right of any person to make an entry or distress, or to bring an action or suit to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned; that is to say, infancy, coverture, idiotcy, lunacy, or unsoundness of mind, then such person, or the person claiming through him, may, notwithstanding the period of twelve years or six years (as the case may be) hereinbefore limited shall have expired, make an entry or distress, or bring an action or suit to recover such land or rent at any time within six years next after the time at which the person to whom such right shall have first accrued shall have ceased to be under any such disability, or shall have died (whichever of those two events shall have first happened). IV. The time within which any such entry may be made, or any such action or suit may be brought as aforesaid, shall not, in any. case, after the commencement of this act, be extended or enlarged by reason of the absence beyond seas during all or any part of that time, of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims. V. No entry, distress, action, or suit shall be made or brought by any person who, at the time at which his right to make any entry or distress, or to bring an action or suit to recover any land or rent, shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within thirty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such thirty years, or although the term of six years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired. VI. When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the estate or estates, to take effect after or in defeasance of his estate tail, and any person APPENDIX. 587 shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in receipt of such rent, and the same person, or any other person whosoever (other than some person entitled to such pos- session or receipt in respect of an estate, which shall have taken effect after or in defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve years next after the commencement of the time at which such assurance if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail, if such assurance had not been exe- cuted, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then at the expiration of such period of twelve years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right, to take effect after or in defeasance of such estate tail. VII. When a mortgagee shall have obtained the possession or re- ceipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession or receipt, unless in the mean time an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee, or the person claiming through him; and in such case no such action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowl- edgments, if more than one was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors, or persons, or his or their agents, shall be as effec- tual as if the same had been given to all such mortgagors or persons; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mort- gage-money, or land, or rent, by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mort- gagor or mortgagors.a right to redeem the mortgage as against the 588 APPENDIX. person or persons entitled to any other undivided or divided part of the money, or land, or rent; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mort- gage, or some estate or interest therein, and not to any ascertained part of the mortgage-money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent, on pay- ment, with interest, of the part of the mortgage-money, which shall bear the same proportion to the whole of the mortgage-money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. VII. No action, or suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the mean time some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable or his agent, to the person entitled thereto or his agent ; and in such case no such action, or suit, or proceeding shall be brought but within twelve years after such payment or acknowl- edgment, or the last of such payments or acknowledgments, if more than one was given. IX. From and after the commencement of this act, all the provis- ions of the act passed in the session of the third and fourth years of the reign of his late Majesty King William the Fourth, chapter twen- ty-seven, except those contained in the several sections thereof next hereinafter mentioned, shall remain in full force, and shall be con- strued together with this act, and shall take effect as if the provisions hereinbefore contained were substituted in such act for the provisions contained in the sections thereof numbered two, five, sixteen, seven- teen, twenty-three, twenty-eight, and forty respectively (which several sections from and after the commencement of this act shall be re- pealed), and as if the term of six years had been mentioned instead of the term of ten years in the section of the said act numbered eighteen, and the period of twelve years had been mentioned in the said section eighteen instead of the period of twenty years; and the provisions of the act passed in the session of the seventh year of the reign of his late Majesty King William the Fourth, and the first year of the reign of her present Majesty, chapter twenty-eight, shall remain in full APPENDIX. 589 force, and be construed together with this act, as if the period of twelve years had been therein mentioned instead of ‘the period of twenty years. X. After the commencement of this act, no action, suit, or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent at law or in equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any trust. XI. This act may be cited as the “ Real Property Limitation Act, 1874.” XII. This act shall commence and come into operation on the first day of January, one thousand eight hundred and seventy-nine. ACT 38 AND 39 VICT. C. 77. (Tue Supreme Court or Jupicature Act, 1875.) Orper VIII. § 1. No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date, but if any defendant therein shall not have been served therewith the plaintiff may, before the expiration of the twelve months, apply to a judge, or the district registrar, for leave to renew the writ; and the judge or registrar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be re- newed for six months from the date of such renewal, and so from time to time during the currency of the renewed writ. And the writ shall, in such case, be renewed by being marked with a seal bear- ing the date of the day, month, and year of such renewal; such seal to be provided and kept for that purpose at the proper office, and to be impressed upon the writ by the proper officer upon delivery to him by the plaintiff, or his solicitor, of a memorandum in Form No, 5 in Appendix (A), Part 1; and a writ of summons so renewed shall remain in force and be available to prevent the operation of any stat- ute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons. 590 —: APPENDIX. ACT 39 AND 40 VICT. C. 37. (Nutium Tempus (Ireranp) Act, 1876.) Whereas, by an act passed in the twenty-fourth and twenty-fifth years of her Majesty, certain provisions were made for the better quieting possessions and titles against the crown in England, and it is expedient to extend these provisions to Ireland, in order that the crown shall have no greater right over the estates of its subjects in Ireland than what it enjoys over the estates of its subjects in England: Be it therefore enacted, etc., as follows: — I. The Queen’s Majesty, her heirs and successors, shall not at any time hereafter sue, impeach, question, or implead any person or per- sons for or in anywise concerning any manors, lands, tenements, rents, tithes, or hereditaments whatsoever (other than liberties or franchises), which such person or persons, or his or their or any of their ancestors or predecessors, or those from, by, or under whom they do or shall claim, have, or shall have held, or enjoyed, or taken the rents, rev- enues, issues, or profits thereof, by the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, infor- mation, commission, or other suit, or proceedings as shall at any time or times hereafter be filed, issued, or commenced for recovering the same, or in respect thereof, by reason only that the same manors, lands, ten- ements, rents, tithes, or hereditaments, or the rents, revenues, issues, or profits thereof, have or shall have been in charge to her Majesty, or her predecessors or successors, within the said sixty years, but that such having been in charge shall be as against such person and per- sons, and all claiming by, from, and under them, or any of them, of no force or effect. II. The Queen’s Majesty, her predecessors and successors, shall not be held, deemed, or taken for the purpose of any suit, bill, plaint, in- formation, commission, or other proceeding, to have been answered, the rents, revenues, issues, or profits of any lands, manors, tenements, rents, tithes, or hereditaments, which shall have been held or enjoyed, or of which the rents, revenues, issues, or profits shall have been taken by any other person or persons by the space of sixty years next before the filing, issuing, or commencing of any such action, suit, bill, plaint, information, commission, or other proceeding for recovering the same, or in respect thereof, by reason only of the same lands, manors, tenements, rents, tithes, or hereditaments having been part or parcel of any honor, or manor, or other hereditaments, of which the rents, revenues, issues, or profits shall have been answered to her : APPENDIX. 591 Majesty, her predecessors or successors, or some other person under whom her Majesty, her predecessors or successors, hath or lawfully claimeth, or shall hereafter have or lawfully claim as aforesaid, or of any honor, manor, or other hereditaments which shall have been duly in charge to her Majesty, her predecessors or successors, as aforesaid. III. In the construction of the act passed in the forty-eighth year of the reign of his late Majesty King George the Third, chapter forty- seven, and of this act, the right or title of the Queen’s Majesty, her heirs or successors, to any manors, lands, tenements, rents, tithes, or hereditaments which are now, or shall at any time hereafter be, sub- ject to or comprised in any demise or lease for any term or terms of years, or for any life or lives granted by or on behalf of her Majesty, or any of her royal predecessors or successors, shall not be deemed to have first accrued or grown until the expiration or determination ‘of such demise or lease, as against any person or persons whose posses- sion, holding, or enjoyment of such manors, lands, tenements, rents, tithes, or hereditaments, or whose receipt of the rents, issues, or profits thereof shall have commenced during the term of such demise or lease, or who shall claim from, by, or under any person or persons whose possession, holding, or enjoyment of such manors, lands, tene- ments, rents, tithes, or hereditaments, or whose receipt of the rents, issues, or profits thereof shall have so commenced as aforesaid. IV. Nothing contained in this act shall extend to any action, bill, plaint, information, commission, or other suit or proceeding instituted or commenced before the passing of this act, and now pending. V. This act may be cited as “The Nullum Tempus (Ireland) Act, 1876,” and shall be read and construed with the act for quieting pos- sessions and confirming defective titles in Ireland, passed in the forty- eighth year of his Majesty King George the Third. INDEX. 38 INDEX. [THE FIGURES REFER TO THE PARAGRAPHS.] A. ABANDONMENT, of action, lets in the statute . . . 361 ABATEMENT, of action for death of party, plaintiff’s rights preserved. . . . » « « » 860 ABSENCE, from jurisdiction, as creating ‘exception - + 111-117 (See DisaBILITIES.) ABSENT FROM THE STATE, construction of the term . 113 ACCOUNT, action for, whenitlies . . . . . . . «(185 barred in six years. «© 1 6 ew ee ew ew we we 1885 ACCOUNTS, Mutual: statute runs from date of last item . . . . 192 if charged within period of limitation . . . . . 192 so whether parties are merchantsornot . . . . 192 item may appear on either side . . . . . . . 193 how proved ... . Sica ay ee a OS must show reciprocal dealings eae a Oe oe, LE tradesmen’s accounts not considered as . . . . 194 credit must be mutual to create. . . . . 195,196 Stated: balance is foundation of new account . . 197,199 and limitation runs thereon . . . . . «197 distinguished from account closed . . . . . . 198 Closed: question of fact whether balance accepted . . 198 may be foundation of new account . . . . . . 199 Of merchants: exception by statute of JamesI. . . . 200 does not obtain in many states . . . . =. . . 200 whether applied to accounts more than six years old 201 English rule in affirmative . . . . . . . 202 so weight of American authority . . . 2038, 204 596 INDEX. ACCOUNTS — continued. Of merchants : to constitute, accounts must be reciprocal . do not embrace banking transactions nor accounts between partners . presumed settled after twenty years ACKNOWLEDGMENTS. (See New Promises AND Ac- KNOWLEDGMENTS.) ACTIONS, not barred until a plaintiff qualified to sue or a defendant capable of being sued 205 206 207 208 368 3873 rule applied as to executors and administrators 369-372, 374 (See EXECUTOR AND ADMINISTRATOR.) different for same cause, limitation of. . . . 8, 189, 224 of contract, limited to six years by statute 21 James I. . 9 so, generally in the United States 11 suspended by statute, limitation is suspended 15 limitation of, begins when right to sue is perfect . 27 (See Time.) right to, revived or preserved by new promise. . . 386,37 (See New Promises anD ACKNOWLEDGMENTS.) in tort, not revived or preserved 37 by government not barred . . . . . . . . . 96-102 (See GOVERNMENT.) personal, disabilitiesin . . . . . . . . . 108-117 real, disabilities in . . . soe e 2 «© 118-126 (See Disamnncnias. ) defeated by necessity, limitation of suspended . . 127-133 (See Necessity. ) of contract, limitations applied to different forms of 134-145 account . eo cision fe ola owl Ae g 135 assumpsit . . . . . . 2. . . ee.) 186-148 debt . 144 covenant > Ser Lp cay! See eee Oa 145 on specialties . . . . . 1... we.) (146-156 (See SPECIALTIES.) of tort, quasi ex contractu . . . . . ws . © 209-214 generally 2. 1 1 1 1 ew ww ww .)) 215-226 (See Torts.) real, English statutes limiting 277 droitural and possessory . . . . . . 1. 1 1s « 978 reduced in number by statute 290 In the United States : all titles allodial 291 INDEX. ACTIONS — continued. In the United States : abolished in certain states general limitation of . writ of Right ahi ip ae. chk: SE (See Rieut, Wrir oe writs of Formedon . (See FormeEDon, Writ OF. ) writ of Entry . (See Entry, Writ ane writ of Dower Ejectment Sete see. oleh Tab GAS (See ExECTMENT. ) between Co-tenants 5 "(See Co-rewanrs. ) between landlord and tenant (See LANDLORD AND TEnawr. ) between mortgagor and mortgagee (See MortGacor anp Montexcar. ) personal, disabilities in real, disabilities in . wo a (See DISABILITIES.) Transitory: limitation of, depends on the lex fort although already barred by the lex loct contractus 348, 349 except where title by adverse possession . : or where plaintiff’s right is statutory not barred by lex loci, may be barred by be fori amendment of, effect How begun. (See Pagans i (See Dower, Wair or.) 597 292 292 279-283 284-286 287, 288 289 298-295 296-303 304-810 311-322 108-117 118-126 347 350 351 349 364 ADMINISTRATOR, color of title in, on unauthorized convey- ance. (See icucurde AND Senne ) ADMIRALTY, statutes of limitations sais not applicable in so in the United Guaee stale demands discouraged in equitable principles of limitation applied 3 in. (See Equity.) ADVERSE POSSESSION, presumption of title i not con- clusive at common law but made conclusive by statute 259, note 24, 25 25 26 26 bo 598 INDEX. ADVERSE POSSESSION — continued. commenced in lifetime of ancestor runs against disability of heir. . 2... ee Be ay PLD) of personal property ground for eg wo tee ee eae 222 founded on claim of right . . . . . « + « 227,287 under English statutes . . . 1. - 2 + + + + + 228 legal title acquired by- . . . . . . « 4, and note, 229 bars remedy of legal owner. . . . «. ~~ - 280,231 soinequity .. . We te oe coho | 282 whether disseisin, a question of fact ee ee © 288, 284 by one in behalf of another’. . . 2. . « « . s + 285 burden to prove, on party saning up.» + « « « «+ 286 party asserting, must have right of action . . . . . 237 naked claim of title will not create . . . . . « + 287 good as against deed of disseisee . . . . . . - - 288 continuity and privity essential to. . . . . . 989-241 successive trespasses do not constitute . . . . . . 239 mere interruptions do not stop. . . . Bh ah Gh ge S208 priority of successive occupations essential to . 240, and note between vendor and vendee. . . . ..... . 241 Evidence to prove . . 1 6 6 we ee ws) 242-258 acts of ownership generally . . . . . . 242,251 declarations against interest . . . . . . « . 248 entry on flats and flowed lands . . . . . . . 244 cutting fuel or timber . . . . . . . 1. . 245 building roads, dams, &e. . . 2. 1. 2. 245 clearing and cultivating . . Se eos " 246, 249 cattle ranging, ae seaweed or gravel, building sidewalks . . . ee ow a in B46 inclosing lands, Jayteipict out Tine he w@ ae ap a BAT payment of taxes .. eo Ee we we ws BAB notoriety of possession, effect at oe we ww 249 possession to division lines . . . . «. . . . 250 by eaves projecting . . . .. ... . 250 roving possession not effectual . . . . . . . 2651 what acts effectual depends on circumstances. . . 251 As to wild lands : constructive seisinof . .. . ew ee a 252 possession limited to actual donupaties”., ea oe BOQ variations from the rule. . . 1... «258 Color of title. . . . . » +e « 254-269 adverse possession aiden; co- -extaniive with grant 254, 255 INDEX. 599 ADVERSE POSSESSION — continued. Color of title : how limited . 2. . 1 2. 1 ew ees 256 conflicting . . . oa ew ee es w s 256 different rule as to wild lands . . . . . . 258 knowledge of defect in title not essential to . . . 257 conveyances to give. . . . . . 259, and note, 261 possession under, bars title by elder deed . . . . 260 void foreign grant does not give. . . . . . . 262 nor, in United States, an Indian grant . . . 263 may exist without written conveyance. . . 264, 267 but claim of right must clearly appear . . . 265 and consideration must be paid . | . . . 266 created by parol gift, semble . . . . . . . . 267 must be an occupation . . . - « «. 2» «© + « 268 opposing and mixed possessions under. . . . . 269 As affecting intervening estates. . . . +» . . 270-273 right of reversioner not.affected by. . . - - » 270 laches of intervening tenant not to prejudice re- mainder-man ...... +... . +. 271 nor his disseisin . . Sow Oe Ga we wee 298 qualifications of ville ee Sh ek at aa ee How interrupted «ow ee wee ew we 274-276 by action of ejectment.. . . « . 2 + + « « 274 proof of actual entry, when dispensed with. . 274 entry may be made by agent. . . . . . . « 275 different rights of entry not impaired by loss of one 276 cannot arise upon direct trusts. . . . . . . 841,343 but cestud que trust may create . . . . . . . 344 may arise upon resulting trusts . . . . +». . 845 arises from fraud. . . . 2 « « + ee + + 846 between co-tenants, cannot exist, unless an ouster . . 296 ouster not presumed . . . se 6 « 299 none between landlord and tenant without disclaimer 804, 307, 308 AGENT, authorized, new promise by, generally binds principal 70, 71 new promise by wifeas . . . ce naryae Sick written acknowledgment by, will iso bind indice - + 90 unless by express direction . . . « - + + + 90 will not prove part payment . . . . . +--+. 91 entry by, to interrupt adverse possession . . + - - 275 limitation in favor of, runs from demand. . . . . - 828 600 INDEX. AGENT — continued, qualifications of rule, consignees . . - - + + + * 824 rule applied to attorneys. . . . - + + + + + + 829 tobanks ... coe ee ee @ B26 AGREEMENT, to suspend fiaitaton. Me 2 oe ee 165 ALLODIAL ESTATES, general in the Unitea Sintes:. . . 291 nature and incidents of . . - . . + 291, note AMENDMENT, joining new pre sistate runs from time of, astohim... . ie s ee @ & BOT _generally, effectof. . 2... 1 eee ee ee 864 setting up the statute . . . vo ge Gy at a ee TB ANSWER, in equity, may set up the sintate: we ee ee 883 APPEAL, effect of, to suspend operation of the limitation . . 1382 during pendency of limitation, suspended as against exec- -utor or administrator . . . oo a 8T4 ASSESSMENTS, of stockholders, action fa, eo limited . . 160 (See STOCKHOLDERS.) ASSIGNEE, in insolvency, ree of, will not revive debt. . . . go Se a Sg ee, 182) nor allowance of aa by eae Je a vay a et a oe no limitation in favor of, against creditors . . . . . 829 ASSUMPSIT, disability to sue in, admitted by construction 387, 105 (See DisaBILITIEs.) limitation of, by construction . . . . . . . . . 186 specific cases in . . . a) Se ee ae ae a SS for damages arising from — oS ow ae as cy a ee 88 tort for same cause, different limitation . . . . . . 189 for debts secured by pledge, barred . . . .. . . 140 set-offs of debts barred not permitted . . . . .. . IJ41 except arising out of same transaction. . . . . 142 debt distinguished from . . . . . «. . wes . 144 in nature of covenant . . . . 2. 2. 2. we ee 145 ATTESTED NOTES .... e =o 6 = » 166 (See Promssony Norzs. ) ATTORNEY, limitation in favor of, runs from completion of service. . . - « + « 178, and note action against, ponarally limited from time of demand ; qualifications of therule . . . So ee we a B25 AWARD, action on, not barred by the atatues og) comer 4 Ls OQ) INDEX. 601 B. BANK, action against, for deposits, how limited . . . 324, 326 checks on, demand to be made before limitation will run 160 BANKRUPT, new cual by, ineffectual to bind his co- contractor. . . se e 663 “BEYOND THE SEAS,” * donstmaction of die teen See LAL BILL OF EXCHANGE, ous: at place specified to be proved. . . . eR ow Re ee 168 paid by acceptor, limitation runs eon payment . . . 164 limitation as to drawer or indorser runs from dishonor of 187 (See Promissory Norzs.) BOND, action on, not barred by the statute. . . . . . . 154 against surety on, for contribution barred. . . . 154 C. CESTUI QUE TRUST. (See Trusts.) CHATTELS PERSONAL, whether title to, may be created by adverse possession . . . . 4, and note, 350, and note CO-CONTRACTOR, new promises by, effect of . . . . 57-69 (See New Promises anp ACKNOWLEDGMENTS.) COLLATERAL SECURITY, due ondemand . ... . 190 mortgage assigned as . . . fot ae ‘ef Go cae 190. (See Monraacr. , COLOR OF TITLE, adverse possession under . . . 254-269 (See ADVERSE POSSESSION.) COMMITTEE. (See Guarpian.) COMMON CARRIERS, actions against, for oe soe ew BIS for injuries. . . . 215, and note CONSIGNEE, actions against, how limited . . « « 824, and note CONSIDERATION, limitation runs on failure of. . . . . 178 mistake as to land sold, runs from discovery . . . . 174 parol contract to convey, on demand ofdeed . . . . 175 CONSTRUCTION, of the statutes of limitation . . . . 12-16 retroactive, avoided . . 1... ee ee ee g 1 as applied to existing contracts. . . ....- =... <&2I4 strict, generally adopted . . . - + « « 16, and note equitable application of the statute = OS ea a 28 602 INDEX. CONSTRUCTION — continued. of foreign judgments as specialties . . . . of statute of limitations (See AssUMPSIT ; Equity; Tine: ITATION ; WORDS). CONSTRUCTIVE POSSESSIONS ... . . 254-256, (See ADVERSE PossEssi0N.) CONTRIBUTION, suits for, limited from time of payment. as between joint makers and indorsers. Pe as against surety on bond . CONTINUING SERVICE, limitation runs ‘from eonnleten of CONTINUITY OF POSSESSION. (See Apverse Pos- SESSION.) CONVEYANCE. (See Deep; ADVERSE PossEssION.) COPARCENERS. (See Co-TENANTS.) CORPORATION, new promise by member of, will not take case out of the statute . ‘A wg CORPORATIONS, foreign, application of siatute a municipal, generally bound by the statute 3 CO-TENANTS, disability of one, not effectual in behalf of others . ‘ in actions between, limitation runs co time hen des fendant is liable to account . ,. ig Ge onl no adverse possession between, unless an ouster . 296, rule includes joint tenants, tenants in common, and co- parceners . seisin of each extends ia the whole and possession of one possession of all ouster as between, what constitutes = 4 occupation of one presumed notadverse. . . . 299, intent to claim adversely proved by words or acts by receipt of rents and profits, when . by silent possession, long continued surrender to one enures to the benefit of all COURTS, when shut, operation of statute suspended. . . (See NEcEssITY.) suits on judgments of, not barred . not of record, whether judgments of, barred . foreign judgments barred . COVENANT, action of, lies on sealed iniacvamnatites ahd sO flint barred . . . ws, ‘ es assumpsit in nature of, subject is Timisation . COVENANTS IN DEEDS, actions on, how limited 151 258 179 180 154 178 70 114 99 126 179 297 296 . 296 296 298 300 301 301 302 303 128 149 149 150 145 145 177 INDEX. 603 COVERTURE, at common law, creates disability . . . . 108 but not if cause of action accrued before . . . . 108 successive disabilities of, not to be tacked. . . . 109 disability of, not merged . . . » » « 110 (See DisaBiLities ; HUSBAND AND Wire.) CRIMINAL CONVERSATION, action for, when barred . 226 D. DAMAGES, arising from torts ae ex contractu, recoverable in assumpsit . . . . wotey ee. ear ew LBS computed up to time of senilich. oe yen hs see ta ag BED DAY, when cause of action accrues, whether inclnded i in period of limitation . . ee ee eo «28-88 ( See Tie.) “DAY CERTAIN,” construction of the term... .. . 85 DEAF AND DUMB PERSONS, may sue . . . . 107, note DEBT, distinguished from assumpsit . . . . . . « « - 144 whenitlies . 2. 2. 1. 2 1 1 ww ee we ee «C14 limitation of... » . + 184,144 DECLARATIONS, againat i interest: evidence tn prove adverse possession. . . 7 - 2 « . 887 DEEDS, to give color of title ae at 2 i) and note, 262, 263 DEFAULT, plea of statute admitted after . . . . . . . 3877 DEMURRER, setting up the statute, atlaw . . . . . . 376 inequity . «© 2. 6 2 6 we ww ew we ee 6888 (See PLEADING.) DETINUE, statute runs from demand and refusal . . . . 224 for titledeeds . . oe « « 224 DISABILITIES, person laboring tater canna tod himself by new promise. . . - « « o » « « 86, note to create exceptions to operation of —— - . + 103-126 In personal actions: enumerated by statute 21 JamesIL. . . . . . 108 (See Insanity; CovERTURE ; INFANCY.) till removed, operation of limitation postponed . . 103 cause creating strictly construed. . . . . 104,106 but in assumpsit, admitted by construction . . . 105 notwithstanding existence of, statute will run, unless exception . . . - iy @ ig Go weet L06 persons under, may sue, Asien: how brought. . . 107 604 INDEX. DISABILITIES — continued. In personal actions : burden to prove, on party alleging . . - - + = 108 cumulative, not effectual . . . . » + + = 109 merger of, not permitted . . . aa 2 oe JD arising from plaintiff’s absence fiom the jurisdic- tion. . . . 1-117 construction of serie eeaiaoia in different stat- utes ... . oo. . + 11, and note, 118 does not exist in depecal states. . . . . - 112 facts to satisfy the exception . . . . 111-113 exception, how applied to corporations . . . 114 foreigners may plead. . . . oe oe @ 116 none, in case of absent dedoilatiy by statute QlJamesI.. .. . eae « 116 subsequently created and rorrally appears . 116 return by defendant to avoid, what constitutes 117, and note In real actions: enumerated in English statutes . . . » . » 118 same general rules of construction of, as in paneer actions . . . . + s » « s 118,121 exist only in favor of person having original right 119, 122 (See ADVERSE PossEssION.) new, arising after first is removed, not effectual. . 119 although involuntary. . . . . . . . . 120 cumulative, not admitted . . . . .. .. ~. 121 “death ” of person under, construction of word . . 122 co-existing, limitation attaches when both are re- moved ... . is eka Sa 128 removed, ten years allowed erika waliict: is heat action .. . Se don ae Gee bam Let, C2 during, rights of reversioner represervad.. pce et be 28 in one co-tenant, rights of others not saved . . . 126 (See NECESSITY.) DISCLAIMER, by tenant, no adverse possession unless . . 3804 not presumed from non-payment of rent. . . 805 by trustee, limitation runs upon... a - 3842 DISSEISIN, whether in any case a question of fact in - 238 what constitutes . . . . . . . 287, and note, 238 by election. . . . 237, note INDEX. DISSEISIN — continued. of intervening tenant not to prejudice remainder-man DIVISION LINES, adverse possession to . gives color of title 605 273 250 259 DIVORCE, limitation of proceedings for. . . . . NOTE, p. 265 DOWER, writ of, when it lies e ‘ 289 not within the early statutes of limitations oe es aw» 289 but might be barred by fine . 289 limited by statute in certain states . A 289 writ of right of, what . . . . + + « « 289, note DUTIES on vessels, action for, founded in specialty ’ 147 E. EJECTMENT, history of the action . 293 is a mixed action as being ae oe netiention al profits . 294 depends on plaintiff’s right of eater 295 and limited in like manner 295 defeated by adverse possession . So. i, Genet 231 ENTRY, to defeat adverse possession. . . . . . . 274-276 to be made animo clamand . ee eee when dispensed with . 274 made by agent, effectual . 275 different rights of in same person, loss weit one » dase ‘tot impair other . 276 ENTRY, writ of, defined ; er eo dpa title 287 sur abatement and sur intrusion, differing ancient limita- tions of 288 general limitation of twenty years. » « 2 " 988, 292 EQUITY, refuses relief to stale demands . 18 acts by analogy to the law in matter of limitations 19 discretion of, in applying limitation 20, 21 defendant’s fraud avoids the limitation 22 constructive application of the statute in . 23 considerations of, govern the courts of admiralty 26 (See ADMIRALTY.) record in, when new promise implied from . 47 in England, creates exception in favor of estates of i in- sane persops . . - .- - » « + 108, note proceedings i in, may suspend aparation ‘of statute . 131 limitation in matters of account . 135 606 INDEX. EQUITY — continued. adverse possession bars remedy in. . . - . + + + 282 exceptions recognized by, in suits to redeem mortgages . 317 refuses relief in case of trusts, after lapse of time 327, 337, note, so in suits for accounting . . . » - + + + + + 3838 beginning of processin . . . - « « « + + 865-8367 (See Process.) ‘plea of the statutein . . . . .« . . + «© + 883-891 statute set up by plea, answer, or demurrer. . . . . 383 (See Fraup; PLEeApDING.) EQUITY OF REDEMPTION, barred after twenty years 316~322 but not when there has been an accounting . . . 3817 or when mortgagee has made acknowledgments 318, 319 or when no time of default is fixed . . . . . . 3820 or when mortgagor has remained in possession . . 3821 EVIDENCE, extrinsic, to prove amount due after general ac- knowledgment . . . te a ww a BS new promise, effect of as, oe revive Habe ay a eet of adverse possession. . . +. « « 227, 242-253 (See ADVERSE Possussron. ) ESTOPPEL, doctrine applied to waiver of statute . . . . 49 against municipal corporations . . . ... . 99 (See GoVERNMENT.) of tenant to deny landlord’s title . . . ... . . 804 but not after relation dissolved . . 2. 2. . 1. 1. . 809 of mortgagor to deny mortgagee’s title . . . . . . 811 EXCEPTIONS, to operation of statute . . . . . . . 96-132 claims in favor of the government. . . . . . . 96-102 (See GOVERNMENT.) by reason of disability . . . + + « «© 108-126 (See Disasrurmms. ) arising from necessity. . . . © + « « 127-132 (See Nucessrry. ) equitable, in favor of estates of insane persons . . 103, note EXECUTORS AND ADMINISTRATORS, of deceased part- ner not bound by new promise of other partner . . 61 generally cannot bind estate by new promise . . . 73,74 reasons fortherule . . ......2.2.2.+2,.« 74 contrary authorities . . ; oe 6 es ) 75, 76 hold that promise must Be express oo Soe wey OTS acknowledgments to . . . + « « NOTE, p. 121 one, not charged by written aekriowledgment of another 98 INDEX. 607 EXECUTORS AND ADMINISTRATORS — continued. limitation in favor of, suspended till appointment absolute 132 suits by, to recover money paid by mistake, how limited 172 cannot hold property of estate adversely. . . . . . 8380 limitation in favor of, runs from discharge . . . . . 330 take real estate for payment of debts as trustees, merely 3831 different rule when action at law against . . . . . 3882 certain actions against executors barred after accounting 338 devolved trusts and separate funds in hands of. . . . 3839 claim of, against estate, not barred till discharge . 332, note limitation against, does not run till appointment of . . 369 rule as applied in the United States . . . . . 370,871 but when cause of action arises in lifetime of decedent limitation runs... . wae Le ee limitation suspended during petdeney of neal: &.. . 374 F, FACTORS. (See Acznts.) FEDERAL COURTS, statutes of limitation held constitu- fionallin 6) ede ee Se we ey LS statutes construed by . . . . goat se we GG governed by statutes of the geveral’ sates! 6 eas a admiralty courts, limitation of proceedings in . . . 24-26 (See ADMIRALTY.) FOREIGNERS, within exception in favor of absent plaintiffs . 115 (See DIsaBILITIES. ) FORMEDON, WRITS OF, defined. Jn descender and in reverter. . - oo ae Se a ee 8 limited to twenty anes i) ag ed oe 1. . « 285, 286 FRAUD, may suspend statute in favor of insane plaintiff . . 106 adverse possession arising outof . . . . . - 837, 346 of defendant, generally avoids limitation 22, 385, 386, and note but not plaintiff's ignorance merely . . . . . 885, 386 no relief against plaintiff's laches . . . . . - . + 3887 equitable rule applied at lawin England . . . . . 888 differing rules in the United States. . . . . . 3889 but like rule generally applied . . . . + - + 890 reasons and applications of therule. . . . . . 391 608 INDEX. G. GARNISHMENT, effect of, to suspend inden of the lim- itation . . . a ly, cee ee BR GIFT, by parol, may frat re of title, aanible oo fen tat eee Be OE GOVERNMENT, claims in favor of, not barred . . . . 96-102 king not bound by statute . . . ..... + + 96 rule arises out of public policy. . Srgeén a aye Se applied to all governments. . . . - - 98 incorporated in jurisprudence of United States - . 98 must be actual party . - . . Gy de eye ee ee 9S rule abolished by statute in many states soe Sow ew VB not applied to municipal corporations . . . .- . 99 unless when representing the state . . . . 99 applied in favor of granteesof . . . . . . . 100 general, state limitations not bindingon. . . - . - 101 as transferee, semble rule not applicable to. . . . . 102 deed of, though void, gives color of title. . . . . . 259 GRACE, limitation runs from last day of . . . . - . 161 GUARANTOR, new promise of, will not bind rene - . 60 _ (See New Promises aND ACKNOWLEDGMENTS.) GUARDIAN, to sue in name of insane plaintiff . . . . . 107 no limitation between, and ward during minority . . . 828 or until marriage of female ward . . . «© « . 3828 or recovery or death of insane ward . . . . . 328 H. HUSBAND AND WIFE, authority of, to bind each other by new promise . . . a we ow TAG G2 written acknowledgment by wvife will 5 not ‘kind husband . 90 relation of, as creating disability . . . . . . . . 108 (See CoverTuRE; DISABILITIES.) I. IDIOT. (See Insaniry.) IMPRISONMENT, disability of plaintiff created by . . . . 108 (See DisaBILitiss.) INCUMBRANCES, breach of saat eae limitation runs fromsale . . . . . . ; , ee a SE INDEX. 609 INDEMNITY, limitation begins when plaintiff is damnified 181, 182 rule waived by ee oO wR a aa 188 indefinite guarantees of . . eee x @ 184 INDENTURES of lease, actions on, not ‘pera ee we we 154 INDIAN GRANT, does not give color of tile . . . . . 268 INDORSEMENT, by creditor, not effectual to bind debtor as by new promise. . . Bg we oe ow OE, 98 ‘(See New Promises anD Pbeeh eeencu nade INFANCY, disability in plaintiff created by . . . . . . 108 disability of, notto be tacked . . . . . . . « . 109 nor merged with another. . . . .. .. . 110 not effectual in favor of infant’s grantee . . 108, note (See DisaBivitizs.) INJUNCTION, pendency of, suspends the limitation . . . 181 to restrain plea of the statute . . . . . . . . . 867 (See Necessity; Equity.) INSANITY, creates a disability in plaintiff . . . . . 108, 108 but not in defendant, at common law . . . 108, note nor in plaintiff except by express terms of the statute 106 unless where plaintiff has been a victim of fraud 106 once existing, presumed ta continue . . . . . 103, note plaintiffs laboring es may sue by guardian or com- mittee... ee ete. Gy Cd ee Ge 107 deaf and dumb persons may sue. . #2 fue. "107, note removed, running of statute not suspended by recurrence of - . « 108, note disehility of, 6 i be tasted @ gnothier Aisailite . . 109 normerged .... i 2 4 oe # e ATO (See Dreasrtintne ) INSOLVENCY, pendency of, does not suspend the statute. . 133 INSOLVENT. (See Bankrupt.) INSTALMENTS, money payable on, limitation runs from date when eachisdue . . . ee te a og eg EOF “INSTANTER,” construction of the roel goak ee: £3 389 INSURANCE, premium notes for, barred ae on loss and assessment. . . ~ + « - 158 INTEREST, payment of, equivalent to to new ‘promise . - .. 80 indorsement of by creditor, ineffectual . . . 79, 82, 91, 95 (See Promissory Notes.) payable annually, limitation does not run till principal is due 167 (See Usury.) INTEREST COUPONS, ee runs on, without demand. 162 610 INDEX. J. JOINT TENANTS. (See Co-TENANTS.) JUDGMENTS, actions on, generally not subject to limitation . 149 of courts not of record . . . - . « « 149,150 foreign, have effect of parol evidence mitely < « . = 150 but made specialty by statute, in some states . . . . 151 reversed for error, rights of plaintiff saved . . . 358, 359 plea of statute admitted after . . . oe ew OTF JURISDICTION, absence from, as creating eicéation . 111-117 (See DisaBILITIES.) K. KING, not bound by the statute .. . «2 2 ee 696,97 (See GOVERNMENT. ) L. LACHES, in pursuing remedy, discouraged in equity. . . 18, 387 not imputed to the state. . . ceo « LOO of intervening tenant not to rajudiog remnltidet ana . 271 in asserting one right of entry will not defeat another . 276 of plaintiff, equity will not relieve against . . . . . 387 (See Equity.) LAND, mistake as to quantity sold, limitation runs from dis- covery... . is Teese var A. Cove sens actions for injuries bas howe Limited. soe e ee) 216, 217 LANDLORD AND TENANT, possession of latter not ad- verse unless disclaimer. . . . . . . 804 disclaimer not presumed from coisparmien of rent . . 3805 what constitutes the relation. . . . . - - + « « 806 so of tenant holding over. . . . - - « « - « + 807 so of successor to tenant’s possession. . . . . « « 808 tenant’s attornment invalid, unless a disclaimer . . . 310 civil law as to prescription between . . . . NOTE, p. 429 LEASE, by indenture, action on, not barred by the statute . . 153 LEGACIES, actions for, being to enforce trusts, not barred by the statute 2 1 1 6 ee ee we we ee 185 INDEX. LEX FORI. (See Actions.) LEX LOCI CONTRACTUS. (See Actions.) LIBEL, action for, how limited . LIEN, on thing pledged good, though debt barted : rule applied to mortgages LIMITATION, arises from on . title by - i he dy ‘ to personal property . in equity . Side pei Wen (See Equity.) in admiralty . jai, Pail See en oS (See ADMIRALTY.) . runs when right to sue is perfect computation of time of (See Tie. , suspended by new promise or acknowledgment 611 (See NEw Promises anD ACKNOWLEDGMENTS.) LIMITATION, STATUTES OF, defined justified by public policy . as promoting justice applied to different remedies history of, in England . in the United States . not unconstitutional . how applied to existing contracts . will not run while right to sue suspended (See NEcEsSITY.) rules of construction of retroactive construction avoided of the states, govern the Federal courts . 218, 219 140 140 1, 5,8 1-5, 8 4, 350 18-23 24-26 . 27 28-35 36-95 1 6 7 . 8 . 9,10 oe 12, 13 is pee He 15, 127-132 16 12 17 alteration or amendment of criminal acts of, effect: Nore, p- 26 how far governing the courts of equity (See Equity.) M. MANDAMUS, limited from time when ere duty com- plete ‘ MERCHANTS’ ACCOUNTS, a of (See Accounts.) MERGER, of disabilities, not permitted . 19, 21 191 200-208 110 612 INDEX. MESNE PROFITS, action os limited from surrender of pos- session. . . Wal Oe a xe 191 trespass for, ee in six years 225 MISTAKE, money paid by, action to recover, ‘Wiiiation runs from payment . . . 24 ew = IT, 172 as to land sold, limitation runs fr om a dlseo very of . 174 possession held hy, may be adverse . . . . 250 “MONTH,” construction of the word . ‘ 34 MORTGAGE, lien of, remains good though note beeen 140 assigned as collateral, foreclosure does not pay debt se- cured by assignment 190 MORTGAGOR AND MORTGAGEE, fdlation GE 311 mortgagor cannot deny mortgagee’s title . 311 his possession not adverse . 312 nor his assignee’s possession ae 312 after default . . . . « » « - 818,315 mortgage presumed satisfied aitar twenty years . 314 equity. of redemption, barred after twenty years 316, 322 exceptions, accounting ae 317 _ Mortgagee’s acknowledgments . . . . 318,319 when time of default not fixed . 820 of reversioner, barred. . . . 3822 of mortgagor in possession, not barred 321 MUNICIPAL CORPORATIONS, application of statute to . 99 (See GOVERNMENT.) MUTUAL ACCOUNTS. (See Accounts.) N. NEW PROMISES AND ACKNOWLEDGMENTS, after debt is barred, rest on original consideration . 36 may be expressorimplied . . . . . . . . . 86,42 may revive actions of contract . 37 ineffectual as to actions of tort . 37 former broad construction of . . . .. . . . 88,39 stricter modern construction of, in England 40 strict construction of, in the United States . 41 implied, must be clear and unequivocal 42 must admit the debt to be due . 42 and be evidence of a new contract . 42 rules as to, applied to special cases . 43 devise to pay debts not, as to debts barred 44 INDEX. 6138 NEW PROMISES AND ACKNOWLEDGMENTS — continued. unless to pay specificdebt. . . . . .. . . 44 return of debt by insolvent not. . . . . . . . . 465 nor allowance of, by his assignee . . . . . 1...) 45 by mortgagee does not bind his mortgagor . . . . . 46 subsequent mortgage by mortgagor, not effectualas . . 46 when implied from the recordin equity. . . . . . 47 of breach of contract, merely, not effectualas . . . . 48 distinction between contracts to do and contracts to pay 48 waiver of benefit of statute, how effectualas . . . . 49 (See WaIver.) cases as to, in the older states, review of. . NOTE, pp. 69-79 Conditional and indefinite. . . . . . . « . . 50-56 only effectual when condition is performed . . . 50 so when conditioned on debtor’s ability . . . 651, 52 plaintiff to prove such ability. . . . . . . 651,52 made before statute attaches . . . . » 82 conditioned on proof of fact, burden on plaintift . . 43 indefinite, ineffectual . . . . . . CODA construction of, for the jury . . . . ‘ 54 as to amount due, plaintiff must prove amount . ee 56 or take only nominal damages. . . , . . 55 By one of several co-contractors. . . - + « « 57-69 general rule that it binds the ethers. Br atin 8 - o7 so whether contract be joint or joint and several - 58 cases of promissory notes . . . .. . . . 58,59 acknowledgment by guarantor ineffectual . . 60 so by accommodation indorser . . . 60 by one personal representative will not bind another 61 nor by assignee or trustee in insolvency . . . . 62 nor by a bankrupt co-contractor. . . . . . 63 By co-partner after dissolution. . . 1. 2 es. ‘64 67 held effectual in early cases . . - . . . 64, 65 rule modified where creditor has notice of dissolu- fon «¢ «© Ss 4 @& & © & & & w w « & 66,67 same principle applied to co-promisors generally. . 68 tule modified by Lord Tenterden’s Act . .. . 69 By agents, executors, ete. . . . oe we ew ww) 610-76 by authorized agents effoptual baw we we we FOP TL so by partner authorized to settle . . . . . . 70 by husband or wife, when authorized . . . . . 71 not authorized, new promise by, ineffectual . 72 614 INDEX. NEW PROMISES AND ACKNOWLEDGMENTS — continued. _ By executors and administrators . 1. 1. 1 4 do not bind decedent’s estate . . . »« « « contrary authorities . oo hold that promise must be express . . rule in Massachusetts. . . . sa 73-75 73, 74 » 75, 76 . 75 ake how proved by indorsements . by payee or obligee . on promissory notes . made on Sunday . : how proved by parol evidence . by written credit or indorsement applied to specific items, not effectual made to person other than creditor, effectual . made otherwise than in money ‘ still effectual since Lord Tenterden’s Act 5 proved by signature of hci ‘ In writing a required by the statnts in England . so, generally, in the United States . 88, note but acknowledgments by part payment still 77-87 77 78 79 80 . 80 81, 85 82, 83 82 83 . 84 85, 95 94, 95 85 86 - . 87 89, 94 ~ ot 88-95 88 effectual 89 must be signed . . . is 90 signed by agent not genetaily eifecenal 90 requisites of 92 by accounts, under fond Tenterden’ 8 het: not effectual . . . . * 93 nor if made by a eo-tatitrastie 94 nor by indorsement by the creditor . ‘91, 95 NECESSITY, exceptions to operation of statute arising from . 127-132 these formerly not allowed 127 must be invincible and unforeseen . 128 as when courts are shut 128 INDEX. 615 NECESSITY — continued. disability created during war. . ee ce 129 but not when rights may be legally en fared » . - 129 cases arising in the war of the rebellion . . . . 180 arising by act of law, suspends the statute . . . . . 181 asbyinjunction . . . ....... =... 2181 or equitable proceedings . . ..... +. =. 181 or pending right of appeal. . . . . . . . . 182 or garnishment . . . se «6 « « 182 but not by bankruptcy or aplveuey soe os w « 188 NON COMPOS MENTIS. (See Insanrry.) NONSUIT, of a plaintiff, lets in the statute. . . . 862, 363 NULLUM TEMPUS OCCURRIT REGI, maxim . . 96-98 (See GOVERNMENT.) O. OUSTER, what constitutes . . . . . . . . . « 287, note as between co-tenants. . . . . . . . « 298, and note not presumed . . . . ..... © « 299, 800 how proved. . . . ...... . . 801, 802 P. PARLIAMENT, successive acts of limitation of . . . 9 PARTNERS, before dissolution, power of, to bind partnership by new promise . . 1. 1 6 es ew wee 57 after dissolution, conflict of authority asto . . 64, 65 better rule that such promise is ineffectual . . 66, 67 (See New Promises 4nD ACKNOWLEDGMENTS. ) accounts between, not within exception of merchants’ accounts 2 1. 6 6 ee ew ww ew te ww ew LOT accounting between, inequity . . .. +. +... . 185 PATENT, of land, evidence of seisin . . . - + « 252 to give color of title, consideration must be pad Ue 266 PAYMENT, effect of, as an acknowledgment . . . . . 77-87 (See New Promises anD ACKNOWLEDGMENTS. ) PENALTY, statutory, action for, not barred . . . «© . . 148 otherwise when set created by the parties . . . 148 for usury. . . os + 6 © NOTE, p. 235 PLEA, in equity, may set mp the stolite ow eH ete we 888 616 INDEX. PLEADING, At law: statute to be specially pleaded . . . . «. « + 3875 set up by amendment or demurrer . . . . -. . 376 plea of, admitted after default or judgment . . . 377 form of plea in actions of contract . . . . . . 878 intortandreplevin . . . . .. .. . 879 in.special cases. . . . . .. =. . + + 880 replications, form of, in assumpsit . . . 381 plaintiff’s declaration in all cases to be on ériginal promise . . 2. 2... ee ww ee ee (882 In equity : statute may be set up by plea, answer, or demurrer 383 defendant to traverse plaintiff's allegations of fraud oravoidance . . . . . 2... ee ss 884 the replication of fraud. . . . . . . . «885-891 (See Fraup.) PLEDGE, lien remains good though debt barred . . . . . 140 PERSONAL INJURIES, action for, when barred . . . . 225 PERSONAL PROPERTY, prescriptive title to. 4, and note, 350 POSTPONEMEDT, of plaintiff’s right, statutes creating, not statutes of limitation . . Poa Ww ae je we we Tyonote statute suspended during. . . . . « 15, 127-132 (See Nucussrrv. ‘i PRESCRIPTION, defined . 1 title acquired by . a SN ek Re a ee SE 1 incidents of . .. . how See 4p Woe 2 not conclusive at common ie 2 by force of statute gee “tas. Ses Yee sah) Ge See OS 3 to personal property. . . . ... .. . 4,850 as limiting remedies . . . ss» » 58 as between landlord and tenant tig the civil tie NOTE, p. 429 PRESUMPTION, of title by adverse possession, not conclusive atcommon law . . .... 1. eae 2 made conclusive by statute. . . . 2. 2. 1. 1. 3 that disability once existing continues 103, note, 108 that specialty debts are satisfied after twenty years . . 156 that accounts are settled after twenty years. . . . . 208 in favor of owner of the record title . . . . . . 286 that possession of one co-tenant is ae of all » . 296 and-so not adverse . . . eos « ow 299 that tenant. holds in subordination bs fandtora . . » 804 INDEX. 617 PRESUMPTION — continued. that mortgage is satisfied after twenty years . . . . 814 PRIVITY, of parties, as determining when cause of action accrues 31 essential to adverse possession . . . . 240, and note, 241 (See Apverse Possrssion.) PROCESS, In actions at law : what constitutes beginning of,in England . . . 352 formerly begun by latitat or capias . . . . 852 now by arrest or service. . . 852 begun, generally, in the United States, by saing: But process . . . i Ae oe ee we a 6888 when process issues, different rites oe ee we 888 service of, defeated by accident, provisions to save plaintiff’s rights . . . . . ... .. . 854 writs sent by mail . . . . - . 854 to avoid statute, must be issued in 1 good faith . - . 855 time of issuing may be shown. . . » + + « 856 service of, upon two or more defendants - +. « 857 new party brought in by amendment . . . 357 judgment reversed for error, rights of plaintiff sare 358, 359 so on arrest of judgment after verdict . . . . . 359 so on abatement for death of party. . . . . . 860 but voluntary abandonment lets in statute . . 361 so the plaintiff’s nonsuit- . . . . . . . 862, 363 In suits in equity : begins by filing the bill. . . . . - . . . 865 although subpcena be not taken out, sernbile » os + 865 new matter alleged . . . - oe + 865 bill filed by one creditor saves vatghts of others . . 366 suits brought by mistake, plaintiff’s right not saved. 367 injunction to restrain plea of the statute . . . . 3867 PROMISES, conditional or contingent, limitation does not run till condition performed. . . . . . . 168,170 or till contingency happens . . . ... . . 169 stock subscriptions . 2. 2. 1 1 ww ee ew we «169 stockholders’ liability . . . . «a w » 169 (See New Promises AnD AGaNONEEneaENeD PROMISSORY NOTES, generally, new promise by one maker binds others . . 57 80, though one sign as maker and others assureties . 58, 59 618 INDEX. PROMISSORY NOTES — continued. but acknowledgment by mere guarantor not effectual 60, 79 so by accommodation acceptor . . os ee Ca 60 personal representatives of one not bound thy nbktiaw!: edgments of other . .. .» ee ot GL nor one partner by seknowleigment of other atte disso- lution . . .. 5 . . . « 66, 67, note, 68 general rule modified by statnte. a alce BG See a 708 but part payment still effectual . . . « . 89 new acknowledgment of, by authorized agent Beneuills effectual . . . . a e «@ = -» 80,71, 79 but not by husband or waite as agent aileae ratified . . 72 indorsements on, as evidence of new promise . 79, 82, 83, 95 made by payee, without knowledge of saken not effectual as new promise. . . . . . 79,82 nor at all under Lord Tenterden’s Act . . 91, 95 new, equivalent to new promise . . . . . . « 80, 87 so payment of interest on. . . Pome se ae ae 28D payment and indorsement made on ‘Sanday: oe ew . B4 part payment on, in goods by terms of note, effectual . 87 (See New Promises AND ACKNOWLEDGMENTS.) payable on demand, limitation runs from date . . . . 157 without date, runs from delivery. . . . . . . 157 on insurance notes, upon assessment made . . . 158 payable certain time afterdemand. . . . .. . . 159 bank notes and checks . . . 1 1 + «© ee es 160 grace on, limitation runs from last day of . . . . . 161 to be delivered on condition, limitation runs from de- livery 2 2 4s ee we we we ewe ww oe DEL interest-coupons, limitation runs without demand . . . 162 to be presented at particular place. . . . - + + 168 paid by accommodation indorser, limitation runs from time note isdue. . . 1. e+ ee we we et 164 limitation on, whether to be suspended by agreement . 165 attested, limitation, how far applied to in different states 166 contribution between joint makers and indorsers, limita- tion runs from payment . .. . . . . 180, and notes PUBLIC POLICY, justifies statutes of limitation . . . . 6,7 rule that limitation does not bind government arises out OF a. Gap stirin @ fe eee a ek OR ee OE (See GOVERNMENT.) INDEX. 619 R. RAILROAD, liability of, how limited. . . . . . . 215,216 REAL ACTIONS. (See Actions.) REMAINDER-MAN. (See REVERSIONER.) REMEDIES, different for same cause, one being barred, plain- tiff may enforce the other . . . . . . . 8,139,224 RENT, failure to pay, not evidence of tenant’s adverse posses- sion. . 228 RENTS AND PROFITS, receipt of by co- Monat ridenes of ouster . . . - oe . + 801 REPLEVIN, limitation runs fon slate taking eo @ o & 223) or from demand when property is claimed of right . . 223 form of plea of statute in. . . «oo . 879 REVERSIONER, under disability, right wa pienso ats 125 right of, not affected by adverse possession . . . 270-273 but right to redeem mortgage barred as against . . . 822 RIGHT, WRIT OF, defined, lies for the mere right. . . . 279 requisites to maintenance of,in England . .. . . 280 anciently, limited to sixty years . . . . . . . 10,280 actual seisin not necessary to maintenance of, in United States... i 8 8 « & © « 281 demandant in, held e strict piGok eos 6 = « @ 282 different limitations of, as against demandant and ancestor 283 general modern limitation of . . . .... =. =. 292 S. SEAMEN’S WAGES, actions for, limited by English statute 24 SEDUCTION, action.for, how limited . . . . .. . . 226 SEISIN, what constitutes . . + 2 « « 287, note (See ADVERSE Poaansayn: ) SERVICE. (See Process.) SERVICES, loss of, action for, how limited . . . . . . 226 SET-OFF, of claim already barred, not permitted . . . . 141 except demand arises out of same transaction as plaintiff's debt. . . . Sat) a> en tet AD action for, limited from entry of jadgevent #8) Ce ae BOLO SHERIFF, action against, for failure of duty, how limited 214, 215, note deed of, gives color of title . . . . . . . . 259, note 620 INDEX. SLANDER AND LIBEL, actions for, how limited . 218, 219 SLANDER OF TITLE, action for, how limited. . . . . 218 SPECIALTIES, statute 21 James I. not applicable to . 146-156 debts on, presumed satisfied after twenty years . . . 156 statute liabilities . . . . . - . © «© + «+ 447,148 judgments . . . 1... 1 ew ee ee) 149-1851 foreign. . 1. 1. we eee ee e150, 151 AWATOB o> oh ce a ge a aS Sg we Se we DO leases by indenture. . . . « «© e+ © © © + + = 188 bonds. sss a. gs cee Ee ee wee OS legacies . . . 2. oe . 185 (See StaTUTE; Seveawis ene ee Bonps; LEGACIES.) STATES, statutes of limitation of, constitutional . . . . . 18 govern the Federal courts . . . . . . . W7 not binding on Federal government . . . . 101 claims in favor of, not barred . - . . «. « = © 96-102 (See GovERNMENT.) STATUTE, debts created by, not subject to limitation . . . 147 aliter, if created by parties acting under . . . . . . 148 as for penalties . . . ........ . 148 making foreign judgments specialties. . . . . . . Idi STOCK, liability to subscription on, limitation . . . . . . 169 STOCKHOLDERS, individual liability of, limitation . . . 169 SUNDAY, payment or endorsement made on, effect . . . . 84 SURETY, payment on note by, may bind ames as by new promise . . . 79 on bond, action aoainat, fo conitatek, not Rained! by statute. . . . . galt - oo ee 154, limitation runs against, froth time of papaient » « 185,186 ‘so-when payment is by new note ...... . 187 so in contribution against . . . . . . . . . . 188 against representatives of . . . . . . . . . 188 after judgment . . . yoy oe 189 SURRENDER, to one co-tenant, enures to benefit ofall . . 303 T. TAXES, payment of, as evidence of adverse possession . . . 248 TAX COLLECTOR, deed of, may give color of title . 259, note TENANT. (See Co-renants; LanpLorD AND TENANT.) INDEX. TIME, of limitation, begins to run when right to sue is perfect day when right accrues, whether included, conflict of authority . Bice os cases including theday . . . .... rule modified in England . English cases excluding the day a os privity of parties as determining the rule . . . . computation from an act done party for whom instrument is made favored rule to depend on circumstances of each case . . . construction of words “month” and “year” . . . . of the words “by a day certain” . . . of the word “ instanter ” TITLE, technically, remained, though vembdy was ‘barved rule changed by statute or construction . . 621 27 28 29 30 31 31 32 382 33 34 385 385 1 1 modern rule, how far applied to personal property 4, 350, note to incorporeal hereditaments, acquired by adverse posses- sim. . . . 2. 6 « we we ee es 2, and note presumed from adverse possession. . . breach of warranty of, limitation runs from eviution . slander of, limitation of actions. . . . adverse possession of land evidence of (See ADVERSE Possession.) TORT, form of plea of statutein . . . . A TORTS, actions for, not revived by new promise . . . 2 177 218 4,229 379 37 Quasi ex contractu, damages for, recoverable in assumpsit 138 actions of, different limitation of assumpsit for same cause 139 limitation runs fromdate ofact . . . . . . 209-211 damages recoverable up to time of verdict . 212 when cause of action accrues, cases : 2138 actions against sheriffs for misfeasance or non-feasance . 214, 215, note Generally: limitation runs from occurrence of the damage 215 against common carriers . . . . . . 215, and note for injuries toland . . . . .. . . ~~ 216,217 for slander and libel. . . . . 2... 218, 219 slander of tile . . . . 1. 1. ee wee 218 Trover : limitation runs from conversion 220 for things tortiously taken, from the thing » . . 221 adverse possession gives ground for. . . . . . 222 622 INDEX. TORTS — continued. Replevin: limitation runs from taking . . » + 223 from demand when property is diated a right . « 228 Detinue: statute runs from demand and refusal . . ..- . 224 Trespass : quare clausum fregit, barred in six years . . . - 225 for injury to person. . . . we + + + + 225 criminal conversation . . 2. . - e+ + 7 + 226 seduction . 2... 2 1 ee ee ew we ew + 226 loss of service. . . mares. ok ey Mele we eh 220 TRESPASS, actions for, barred in six years . . . . . . 184 (See Torts.) TROVER, limited from time of conversion . . . . . - . 220 for things tortiously taken from taking . ee 221 adverse possession as affecting . . . . - » + » « 222 TRUSTS, actions for legacies are to enforce . . . . . . 155 Of personal property : generally, no limitation as between trustee and cestut que trust .« «ww ew ww ww ww 827 rule applied to guardianships. . . . . . . . 828 to bankrupt or insolvent estates . . . 329 to executors and administrators . . . " 330-332 actions against trustees for accounting . . . . . 3833 against legatees for refunding . . . . . . 3834 to recover legacies . . ..... . . 885 to redeem pledged property. . . . . . . 836 devolved trusts and separate funds . . . . 838 limitation runs from wWisavowal of . . . . . . 887 cognizable at law within the statute . . . . . 840 Of real property : direct, no adverse possession between trustee and cestul que trust . . . . . 2. «© 841-848 until disclaimer . . . . . - oe . . 842 cestui que trust may create adverse possession, how, 344 Resulting : adverse possession may arise upon . . . . . . 845 fraudulent possessions adverse . . . . . . . 846 INDEX, 623 U. USURY, penal action for, how limited . . . . . NOTE, p. 235 V. VENDEE, possession of, tacked to that of vendor. . . . . 241 W. WAIVER, of benefit of statute, for consideration, effectual. . 49 consideration presumed, when . . . ...... = 49 doctrine of estoppel applied to. . . . . . ... 49 WAR, suspension of operation of statuteby. . . . . . . 129 of the rebellion, statute suspended by, when . . . . 181 (See NEcEssITY.) WARRANTY, in suit on, limitation runs from time of sale. . 176 of title, limitation runs from eviction . . . . . . . 177 against incumbrances, from time of sale . . . . . . 177 WILD LANDS, adverse. possession of . . . . . 252, 2538, 258 (See ADVERSE Possession.) WILL, as giving color of tile . . . .. . . . 254, and note WORDS, construction of, “day certain”. . 2. . 2 2. 1 6 © «© «we e685 “instanter” 2. 6. ee ee ew ew we ee) CD month? oc eg Se Bw woe ye ee OF MOVOAR ace gn con Set Boies We Ris Hoa kin Go By ge cea, OA “absent from the state” . . . . . . © « + 118 “beyond the seas” . . . sw ew eh d6C@DD Y. “YEAR,” construction of the word . ........ «384 University Press: John Wilson & Son, Cambridge.