(flnrnpU ICaui Btl^aai Slibrarii uiilm™.,!?,!] "^® ''Citation of actions 3 1924 020 071 621 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 924020071 621 ^econij . Bloodgood 87 V. McElroy 488, 490 Alnsfield v. More 710 Abell V. Harris 532, 610, 624, 713 Ainslee v. Wilson 395 Abendroth v. Manhattan R. Co. 161 Airey v. Stevenson 195, 196 Abercrombie v. Baldvrin 673 Airy v. Smith 21 K. Butts 198, 218 Ake's Appeal 77 V. Sheldon 478 Alabama Bank v. Dalton 8,605 Aborn v. Burnett 569 Albany v. Abbott 386 Abraham v. Swann 262, 264 Albany v. Hill 311 AehesoQ v. Shenk 80 Albany Commercial Bank v Hughes 53, Acker v. Acker 44 456, 582 389 Ackerman v. Sherman 242 Albion Bank v. Burns 400 A'Court V. Cross 191, 261, 273, 274 Albut V. Nilson 677 u. Smart 207 Aldaus V. Cornwall 354 Adair v. Shaw- 535 Aid en v. Grove 634 Adam V. Bristol 486 Alderson v. Merrill 666 Adams v. Adams 58 V Miller 668, 671 V. Barry 480 V. White 555 V. Carroll 715 716, 717 Aldrete v. Demitt 265 V. Clayton 63 Aldrich v. Morse 272, 292 74 Alexander v. Macauley 453 V. Fort Plain Bank 51 333, 334 V. McMurray 529 V. Fullam 649 V. Pendleton 25 V. Guerard 660 V. Stewart 694 I'. Jones 812 V. Tarns 514 V. Guice 650 V. Westmoreland Bank 55 V. Orange County Bank 54, 389 Allan V. Somme 466 V. Patterson 715, 716, 719 Allbrook v. Hathaway 60 V. Taylor 527 AUcock I). Ewan 166, 206, 227 V. Tiernan 695 Allen, Ex parte 475 V. Torrey 226 V. Babbington 428 Adams Express Co. v. Black 295 V. Blakeway 640 V. Beagan 108 V. Brown 298 Adamson v. Davia 37 - — V. Chatfield 664 V. Smith 578, 602 V. Collier • 218 Addams v. Seitzinger 292 303 304, 310 V. Collins 198 Adger v. Alston 11 V. Early 549 Adlard v. Muldoon 76 V. Farrington 478 XX TABLE OP CASES. Allen V. Holton 624, 627 Anderson 6. Baxter 141, 551 V. Ladd 416 V. Robertson 307 V. McNew 76 V. Sanderson 243 V. Maddox 722 V. Washabaugh 402 V. Mann 742 Andes Ins. Co. v. Fish 108 V. Mille 702 Anding v. Davis 564 V. MUIer 417 V. Dadis 551 V. Moer 478 Andres v. Andres 673 V. Portland Stage Co. 743 Andress's Appeal 312 I'. Rivington 619 Andrew v. Allen 72 V. Sawtelle 747 Andrew's Case 429 V. Sawyer 426 Andrews v. Brown 217, 520 V. Thayer 672 V. Farmers L. & T. Co 161 V. Walton 243, 261 V. Hartford, &c. U. R. Co. 24, 489 V. Webster 166, 184, 207, 212, 216, V. Huckabee 478 228, 731 V. Montgomery 87 Alliot V. Aubert 418 V. Mulford 631 687, 697 Allis V. Moore 578, 603 V. Murphy 74 AUis «. Morse 578, 603 V. Paradise 429 Allison V. James 167, 181, 194, 212 V. Smith wick 530 W.Pennington 211 — I— V. Sparhawk 500 V. Waldham 401 Angrove v. Tippett 373 Almy V. Winslow 378 Annapolis, &c. R. R. Co V. Gantt 542 Alsop V. Bell ^ 497 Anonymous 89, 127, 428 429, 431, 458, Alston V. Alston 418', 533 500 641, 648 V. Collins 634 App V. Drieshach 520, 714 V. State Bank 292, 304 Appleby v. Obert 649 V. Trollope 476 Appleton V. Bascom 395 Alstyne v. Lemons 81 V. Edson 445, 556 Altemas v. Campbell 640, 641, 674 Archbold v. Scully 163, 553 Altemus v. Long 658 Arden v. Arden 519 V. Trimble 658 Arey v. Stephenson 195, 200 Alton V. Illinois Trans., &c. Co. Ill, 118 Argall V. Kelso 456 Alvord V. Marsh 495 ArgoU V. Bryant . 417 V. Syracuse Savings Bank 161 Argotsinger v. Vines 630, 676 Amas V. Campbell 499 Aritt V. Elmore 10 Ament u.Wolf 634, 680 Armfield v. Moore ^89 American Bible Society v. Hebard 56 Armistead v. Brooks 175, 298 Ames V. Le Rue 76 Armour v. White 643 V. New York Central Ins. Co. 107 Armstrong v. Campbell 133, 134, 504, V. New York Ins. Co. 99 508, 529 V. New York Union Ins. Co. 102 V. Craft 97 Ameshury v. Bowditch Ins. Co. 99 V. Dalton 118 V. Mutual Fire Ins. Co. 102 V. Risteau 626 Amory v. Lawrence 546, 564 V. Smith 340 Amos V. Bennett 51 Arnaut v. New Orleans, &c K. R. Co. 323 V. Campbell 89 Arndt v. Arndt 80 V. Smith 301, 302 Arnold v. Arnold 493 Amoskeag Manfg. Co. v. Barnes 473, 477, V. Booth 80 479 V. Dexter 186 V. Spear 162 V. Downing 272, 279, 280, 282, 292 Amott V. Holden 325, 328, 439 V. Hickman 89 Amy V. Dubuque 362, 363 V. Hudson River R R. 152, 153 V. Watertown 24,. 605, 607 V. United States 122 Anders v. lUeredith 674 Arnote's Appeal 23 Anderson v. Akard • 59 Arrington v. Liscom 549. 564 TABLE OF OASES. XXI Arrington k. McLemon 705 Ayant v. Sweet 176 Arrowsmith v. Bulingame 642 Averill v. Taylor 541 Arthur v. Saunders 68 Avery v. Pixley 130 Artz II. Grove 568 V. Stewart 122 Ascutney Bank v. McOrmsby 60 Ayer v. Hawkins 272, 274, 292, 297 Ash V. Hayman 180, 238 Ayers, Re. 111 V. Patton 167, 179, 185, 207 Aylett V. King 154 Ashhrook v. Quarles 40, 44, 599 V. Robinson 197 Ashby V. James 240, 716 Aymar v. Bill 542 V. Washburn 262 Ayres v. Richards 181, 212, 219, 249 Ashley v. Hills 714 V. Waite 61 546, 547, 557 Ashlin V. Lee 294 Ayton V. Bolt 230, 233, 235 Aslimead v. Kellogg 469 Ashton V. Martyn 428 Ashurst's Appeal 56, 530 B. Askew V. Hooper 145, 146 Aston V. Aston 133 Babcock v. Utter 650 Astor V. Turner 641 569 Atherton v. Johnson 629 Bachman v. Roller 242 Atkins V. Boardman 464 Backentoss v. Cam 428 V. Tregold 240, 400, 487, 729, 736 Bacon v. Gray 576 Atkinson v. Bradford, &o. Soc. 324 V. Mclntire 426, 555 V. Dunlap 41,45 a. Rives 612, 529 V. Patterson 655 V. Waller 126 155 Badger v. Arch 190, 241 Atkyns v. Horde 7, 618, 620, 621, 672 V. Badger 134, 160, 509, 531 Atlantic Bank v. Harris 712 V. Kelly 478 V. Merchants' Bank 379 Badham v. Roller 198 Attorney-General v. Mshmongers' Co. 504 Badlam v. Tucker 66 — T- V. Del. & B. B. R. Co. 161 Bagley v. Bates 77 V. Eastlake 156, 162 V. Ward 746 V. Exeter 471 Baildon v. Walton 276 V. Federal St. Meeting-House 531 Bailey v. Appleyard 466, 467 V. Hotham 665 V. Bailey 166, 184, 185, 189, 191, V. McLean 693 194, 211, 214, 482 V. Magdalen College 109 V. Carter 134 546, 551, 564 V. N. Y. & L. B. B. Co. 161 1: Corliss 739 V. Purmort 144 V. Crane 179, 184, 196, 212, 226, Atwater v. Bodflsh 465, 466 262, 303 V. Fowler 134, 141, 149, 156, 524, V. Hall 415 527, 719, 721 V. Hughes 429 V. Townsend 32 V. Lansing 362 Atwood V. Cobum 227 V. Shannonhouse 89, 499 V. Mansfield 664 V. Woodbury 418 V. Rhode Island Agricultural Baillie v. Lord Inchiquin 135, 217 Bank 135, 478 V. Sibbald 135, 168 Aubry v. Eortescue 135 Baine v. Williams 298, 604 Atikeney v. Penrose 426 Baird v. Blagrove 89 V. Pierce 666 V. Evans 639 Aurora v. West 364 V. RatcUflf 373 Austin V. Barrett 711 V. Walker 339, 350, 524 V. Bailey 692 Baker v. Atlas Bank 404, 457 V. Bostwick 212, 233, 249, 731 V. Baker 10 478 V. Biddle 137, 142, 146 V. Moore 441 V. Boozer 47.1 V. Rust 635 V. Brown 10, 488 iXU .TABLE OF CASES. Baker v. Bush 28 Barbeo v. Wheeling Fire & Ma r.In s. Co. 107 V. Chase 470 Barber v. Babel 557 V. Corey 76 V. Barber 707 V. Fuller 473 Barber Surgeons of London V. Pelson 55 V. Johnson County 118 Barclay's Appeal 272 V. Joseph 347, 524 Barclay v. Talman 408 V. Martin 535 Barger v. Durain 282 V. McFarland 158 V. Hobbs 642 V. Morris 154 V. Miller 642 c. Noll 670 Barkelew v. Taylor 568 V. Stackpole 730, 735 Barker v. Green 450, 452 V. Stonebraker 85, 492 V. Martin 89 V. Swan 622 B27, 630 V. Millard 584 V. Whiting 511 512, 531 V. Miller 10 Balch V. Onion 272, 301 V. Richardson 467 Balcom v. Richards 288 V. Strafford Co. Savings Bank 386 Baldro v. Tomlie 41, 44, 45, 51 Barley v. Jackson 426 Baldwin v. Calkins 154 Barlow v. Bellamy 166, 207, 216 V. Campbell 537, 538 V. Whitelock 536 V. Cole 469 Barnard v. Bartholomew 197, 220 !i. Newark 38,41 V. Bougard 514 V. Peach 500 V. Edward 698 Balkham v. Woodstock Iron Co. 157 V. Jewett 514, 538 Ball V. Cox 681 Barnes v. Vickers 694 V. Lawson 533 Barnesly v. Powell 133 r. Nye 45 Barnet v. Dougherty 514 V. Eay 466 Barney v. Oelrichs 589, 595 V. Wyeth 40, 373 V. Patterson 80 Ballard v. Dyson 465, 466 V. Smith 169, 172, 173, 246 Ballinger v. Barnes 185, 225 V. Sutton 635 Ballou V. Taylor 172 Barnsback v. Reiner 394, 397 Bait. & 0. R. R. Co. v. Glenn 408 Barnuni v. Landon 73 V. Strauss 161 Barnwall v. Smith 473 i>. Trimble 549 Barr v. Gratz 656, 657 Baltimore Turnpike Co. v. Barnes 410 Barrett v. Coburn 673 Baltz V. BuUman 425, 426 Barrington v. Pittsburgh, &o. R. R. Co. 58 Bamfield v, Tupper 190 Barron v. Barron 5^3 Bancroft v. Andrews 151 V. Kennedy 272, 276 288, 289 Bangs V. Hall 179, 184 , 187, 207, 212, V. Martin 546, 551, 566, 567 213 216, 224 Barsalon v. Wright 478 Bank v, Beverley 507 Bartholomew b. Candee 434 11. Carpenter 160 V. Edwards 624 V. Carrington 514 Bartlett v. Judd 536 V. Coyle 324 V. New York 597 V. Daltou 607 V. Simmons 681 V. Daniel 136 Bartly v. Faulkner 416 V. Dutton 40 Bartol V. Calvert 130 V. Hammond 402 Barton v. Tattersall 499 V. Smyers 634, 636, 649 Barwick v. Thompson 665 V. Waterman 713 Barwick's Case 125, 126 V. Wooddy 282 Bash V. Bash 331 Bankhead v. Owen 560 Baskin v. Seeehrist 668, 672 Banks v. Coyle 325 Baskins v. Wilson 743 V. Judah 161 Bass V. Bass 502 714, 719 Banman v. Grubbs 579 V. Smith 167 Bannon v. Lloyd 28 V. Williams 424 TABLE OF CASES. XXIU Bassand v. White 713 Beatty v. Mason 630, 631 Bassett v. Bassett 594 V. Van Ness 25 V. Hotel Co. 404 Beaubien v. Beaubien 534 V. Sailborn 57 Beauchamp v. Mudd 10, 490 V. Salisbury Mfg. Co. 161 Beaumont v. Reeve 510 Batchelder v. Batchelder 239 Beaupland v. McKeen 658, 681 Bateman v. Allen 619 Beck V. Beck 226 V. Boulton 278 V. Haas 297 196 249 274, 288 Beckett v. Bradley 664 Bates V. Bates 226, 231, 238 Beckford v. Close 136 V. Conrow 546, 555 V. Wade 36, 185, 151, 546,547, 552, 607 V. Curtis 57 Beckley v. Howard 468 V. Gillett 132 Beckman v. Satterlee 740, 743 631 Beckton v. Alexander 23, 580 Bath V. Freeport 55 Beckwith v. Angell 82 Bathgate v. Haskin 333 V. Sibley ' 69 Baton V. Mclntire 557 Bedell v. Shaw 652 Batson v. Murrell 473 Bedford v. Brady 136 Battle V. Shivers 2 Beebe v. Dudley 402 Battles V. Fobes 89,42 Beeching v. Morphew 476 Battley v. Faulkner 336, 378, 449, 456 Beedy v. Dine 680 Baubien v. Baubien 508 Beeker v. Van Valkenbergh 614 BauGum v. Streeter 412 Beer o. Beer 73 Baumgartner v. Guessfleld 514 Beers ». Reynolds 721 Bausman v. Kelly 162 Beesley v. Spencer 40 Baxendale v. Murray 466 Behrens v. Boutt^ 244 Baxter v. Deaa 568 Belch V. Harvey 547 V. Gay 383, 411 Belchertown v. Bridgman 718 V. Hozier 73 Belknap v. Bendor 510 0. Penniman 167, 178, 187, 211, 217, 484 V. Gleasou 61, 141, 144, 172, 233, 529, 545, 559 V. State 117 Bell's Estate 244 Bayard v. McLane 76 Bell V. Crawford 179, 185, 197, 198, 219, 280 Bayles v. Baxter 513 V. Denson 633, 688 Bayless v. Street 193 11 Bayley v. Ashton 268, 277, 291, 299 V. Hartley 629, 690 V. Wallace 109 V. Lampey 593 Baylor d. Digarnette 511 1'. Levers 506 Bayly v. Doolittle 637 V. Longworth 642, 681 Bayntyn v. Walton 129 V. McCawIey 640 Beadle v. Hunter 470 «. Morrison 7, 179, 180, 185, 187, 198, Beal «. Nason 39,40 207, 208, 280, 232, 238 727, 731 733, 734 Beale v. Edmondson 167 V. Pierce 593, 597 V. Nind 174 ,190, 199, 201,214 V. RadclifE 297 Bealey v. Shaw 466, 467 V. Rowland 186, 187 ,208,216 Bealy v. Greenslade 287 289, 445 V. Yates 366 Bean v. Brown 296 Bellamy v. Sabine 705 V. Tonnelle 3, 4, 65, 150 Bellasis v. Hester 125 Beard v. Presbyterian Church 478 Belles V. Belles 179, 207, 216 714, 717 V. Ryan 684 Bellis V. Bellis 639, 655 Beardmore v. Gregory 495 Bellville Savings Bank V. Winslow 28 Beardsley v. Hull 254 291, 736 Belmont v. O'Brien 487, 546 Beasley v. Evans 211, 215 Beloit V. Wayne 726, 781 733, 737 Beatty v. Burnes 51 Beltzhoover v. Yewell 39, 276 305, 714 V. Clement 305 Belvidere v. Warren R. R. Co. 41 V. Lycoming Ins. Co. 99 Bemis v. Bemis 478 XXIV TABLE OF CASES. Bemis u Leonard 121 Bigelow V. Jones 673 Benjamin v. Eldridge 41 V. Libby 361 Bennett v. Buchanan 395 V. Los Angeles 161 V. Clemeace 673 V. Whitney 295 V. Cobb 397 V. Wilson 121, 122, 123 V. Cook 894 ,594 Bigger v. Hutchins 478 V. Davis 719 Biggs V. Lexington, &c. E. R. Co. 311 V. Dawson 478 V. Roberts 278, 307 V. Union Bank 568 Bihrin v. Bihrin 26 V. Waller 433, 434 435 Bill V. Lake 325, 330 Bennington v. Dinsmore 744 Billings V. Hall 1,39 Benny v. Rhodes 298 Billon V. Larimore 23 Benson v. Mayor 37 V. Lattimore 600 V. Stewart 555 695 Bingham v. Thompson 568, 569 Bentley's Appeal 8 V. Wether way 428, 432 Benton v. Bailey 541 Binn v. Nichols 480 V. Fletcher 403 Bird V. Davis 295 V. Holland 280 V. Gammon 198, 203, 266 Bentwick v. Franklin 37 Birk V. Guy 260 Berghaus v. Calhoun 166, 181, 185, 198, Birnie v. Main 549 205 , 207, 212 ,268 Biscoe V. Jenkins 736 Berly v. Taylor 60 478 Bernstein v. Hicks 215 V. Stone 272, 288 Berrian v. New York 275 Bishop V. Bishop 569 V. Conover 699 V. Little 412 Berrien v. Wright 10 V. Sanford 81 Berrington v. Parkhurst 641 V. Settle 139, 143 Berry v. Brown 510 V. Young 359 883 Bissell V. Adams 282 Berthold v. Fox 672 V. Hall 30, 31, 33, 51 Bertine v. Varian 74, 504 V. Jandon 83, 215 Bertrand v. Byrd 76 Bizzell V. Nix 549, 559 Bescher v. Paulas 711 Black V. Johns 123 Best V. Campbell 510 V. Payne 642 Bethune v. Dougherty 504 V. Piatt 4 Bettison v. Budd 671 !;. Reybold 179, 215, 262 Betton V. Cutts 234 V. Schouler 295 Betts V. Brown 624 664 V. Swanson '42 V. Norris 414, 452 453 V. Winnesheik Ins. Co. 107, 709 Beran v. Cullen 27 719 Blackburn v. Mann 418 V. Gehling 277 33,36 V. Getting 443 Blackeney v. Ferguson 664 Beverly v. Burke 690 Blackford v. Peltier 39,42 Bibb V. Peyton 737 Blackman v. Nearing 121, 123 Bickford v. Wade 578 Blackwell v. Blackwell 531 Bicklc V. Chrisman 24 V. Bragg 23,24 Bicknell v. Gough ■ 136 593 Bidden v. Brizzolade 198 566 Blackwood v. Van Vliel 624 Biddle v. Moore 96 473 Blain v. Blain 742 V. Wendell 418 Blair v. Bass 569 Bidwell V. Astor Mut. Ina. Co. 141 V. Bromley 449 V. Rogers 233 V. Drew 714, 719 Bierne v. Mower 746 V. Lynch 276 Bigelow V. Ames 30 V. Ormand 325, 328, 439, 441 V. Bemis 89 V. Williams 37 511 Blake v. Crowninffshielr 19.1 TABLE OF CASES. XXV Blake v. Foster 646 , 551, 564 Bond V. Lathrop 731 V. Nelson 141, 144 476 V. Parleman 198 Bone's Appeal 56 V. Sawyer 297 Bonesteel v. Van Etten 332 Blakeley v. Bester 624 Bonner v. Young 312, 529 Blakeman v. Fonda 208, 235 Bonham v. Newcomb 554 Blakemore v. Byrnside 569 Bonney v. Ridgard 706 Blakeway v. StraSord 520 V. Stoughton 23 Blaloek v. Phillips 60 Bonny v. Seely 395 Blanchard v. Brooks 540 Bonomi v. Backhouse 434, 454, 461, 462 V. Hilliard 122 Boody V. Lunt 377 Bland v. Haselrig 167 729, 735 Booker v. Gregory 317 Blaney v. Bearce 540 Boomer v. French 604, 605, 606, 607, 708 Blatchford v. Plymouth 482 Boon V. Miller 152 Blethen v. Dewnal 437, 553 V. Pierpont 556. V. Lovering 380 Boone v. ChUes 504, 512, 530, 533, 536. Blight V. Rochester 517 Booth V. Adams 673. Bliss V. AUard 215, 219 V. Powers 448 V. Hall 464 V. Small 676. Blithen v. Lovering 394 V. Warrington 136, 138' Blodsoe V. Doe 109 Boothby v. Hathaway 430- Blood V. Wood 677 Borden v. Perry 134, 280. Bloodgood V. Bruen 184, 202, 217, 241, Bordens v. Murphy 26. 242 244, 521 Bordly v. Clayton 698. Bloom V. Kern 172 194, 266 Borel V. Rollins 685, 687 Blount V. Eoheson 510 Borretts v. Turner 643 Bloxam v. Walker 429 Borrows v. EUison 600 Bludworth v. Lake 540 Borst V. Corey 56, 61, 140, 143, 169, 171, 558 Blue Hill Academy v. Ellis 245 Bosley v. Nat. Machine Co. 702, 709. Blunden v. Baugh 619 V. Porter 298 Blunt V. Heslop 130 Boss i>. Hershraan 211 Blydenburgh v. Cotheal 433 Bossard v. White 532' Boardman v. House 589, 599 Bostwick V. Dickson 529- Boatwright v. Boatwright 489, 494, 495 Bostsord V. Burr 614 Bobe V. Stickney 295 Boteler v. AUington 505- Bobo V. Norton 82 Botts V. Shield 648 Bodflsh V. Bodflsh 468 Boughton V. Flint 150- Bodger v. Arch 301, 302 Bound V. Lathrop 233; Bodley v. Cogshill 663 V. Sharp 620' 0. Ferguson 535 Bourdin v. Greenwood 369 Bogardus v. Trinity Church 648 Bourlan v, Waggaman 141, 144 Bogert V. Vermilyea 593 Bourne v. Hall 511 Bogg's Appeal 45 Bouton V. Dry Dock Stage Co. 406 Boggs V. Bard 26 Bowdish V. Dubuque 669 -^ V. Hargrave 540 Bowdre v. Hampton 196, 249 V. Johnson 527 Bowen v. Bell 58 Bohanan v. Chapman 470, 589 V. Guild 688 Bolivar Manfg. Co. v. Neponset V. Miller 249 Manfg. Co. 464 Bower v. Hill 466 Boiling V. Petersburgh 629 Bowes V. East London Waterworks 471 Bollinger v. Choteau 551, 553 Bowie V. Bahe 630 Bolton V. Hamilton 672 V. Drake 634 Bomeiser v. Dobson 76 V. Poor School Soc. 408 Bonaffe v. Woodbury 295 Bowker v, Harris 184, 226 Bond V. Hopkins 133, 138, 148, 151 163, 641 Bowles v. Elmore 325, 329 V. Jay 719 V. Woodson 411 XXVI TABLE OF CASES. Bowman v. Bartlett 634, 663 Brand v. Longstreet 26, 176 V. Cockrill 624 Brandon «. Brandon 653 V. Curd 402 Brandram v. Wharton 729 V. Powner 219 Brandt v. Ogden 621 629,651 V. McChesney 353 Braun v. Sauerwein 12 V. Wathen 136, 146, 148, 150, 160, Braytou v. Rockwell 185, 219 609, 529, 531 Breckenridge v. Churchill 132 V. Wood 122 Bree v. Holbech 325, 379, 411, 449, 541, 702 V. Wright 397 Breed v. Hillhouse 402 Bowyer v. Cook 458, 459 Breedlove v. Martinsrille, &c. E . E. Boxley v. Gayle 196, 198 Co. 407 Boyce v. Dudley 599, 601 Brehm v. Mayor 584 V. Foote 483 Bremer v. Bigelow 666 Boyd V. Barringer 40 Breneman's Appeal 4 V. Beck 544, 555 Brennan v. Ford 141, 394 V. Blankman 705 Brent v. Chapman 36 V. Clark 35, 491 V. Cook 384 V. Grant 187, 211 Brettlebank v. Goodwin 535 487 Brewer v. Harris 130 V. Hurlburt 202, 209 V. Kelly 711 Boydell v. Drummond 260 Brewster v. Brewster 481 Boyden v. Cape Fear Bank 389 V. Hardeman 179, 731, 737 Boyle V. Zachary 707 V. Hobart 313 Boyreau v. Campbell' 642 Brian v. Sims 80 Bozeman v. Browning 12, 13, 601 Brice v. Hamilton 296 Bracken v. Martin 629 Bricker v. Lightner 702, 712 V. Miller 523 Brickett v. Davis 25 Brackett v. Mountfort 185, 214, 216, 223 V. SpofEord 689 224 Bridge v. Gray 731 Bracon v. Bracon 36 Bridgeam v. Hoffmaster 691 Bradbury v. Grinsel 467 Bridges v. Blake 218 Bradfield v. Tapper 289 V. Supervisors 390 Bradford v. Andrews 744 Bridgeton v. Jones 276, 288 V. Brooks 44,45 Bridgforth v. Payne 28,29 V. Guthrie 690 Bridgman v. Gill 54, 504, 705 V. MeCormick 606 V. Green 704 11,41 Brien v. Sargent 637 "Bradie v. Johnson 179 Briggs. «, Boston, &c. E. R Co. 66 Bradley v. Field 184, 212 V. Fish 540 V. James 292, 303 V. Prosser 649, 654 V. Norris 478 V. Thomas 489 Bradley's Fish Co. v. Dudley 464 V. Wilson 303, 305, 476, 481 , 488, 497 Bradner v. Strong 275 V. Williams 298 Bradshaw's Case 431 Brigham v. Bigelow 39 Bradstreet v. Clark 9, 19, 20, 600, 603 V. Eveleth 59 V. Huntington 'i , 629, 639, 643, 644 V. Hutchins 224 Brady v. Calhoun 714 Bright V. Legerton 160 509, 531 !). Mayor 57 V. Walker 467 V. Wallens 578 Brigstooke v. Smith 206, 261 V. Walters 622 Brimmer v. Proprietors of Long V. Western Ass. Co. 106 Wharf 656 Brahm v. Adkins 389 Brinckerhoff v. Bostwick 406 Brailsford v. James 196, 200, 226 Bringloe v. Goodson 665 Brainerd v. Buck 181 Brinkman v, Jones 664 i\ Bushnell 120 Brinsfield v. Carter 109 Branch v. Doane 465 Brinsmaid v. Mayo 73 TABLE OF OASES. XXVU Brinton v. Hutchinson 535 Briscoe v. Auketell 40, 42, 733, 734 Brisendine v. Martin 395 Bristol V. Carroll Co. 625 Bristow V. Miller 527 British Linen Co. v. Drnmmond 35, 36 British North Am. Bank ... Merch- ants' Nat. Bank Brittlebank v. Goodwin Britton v. Lewis Broadhurst v. Balgany Brobst V. Brock Brock V. Savage Brocking v. Cham Brocklehurst v. Jessop Broistedt v. South Side R. R. Brolasky v. McClain Bromwell v. Buckman Brooke v. White Brookes v. Chesley V. Humphreys Brooks V. Bruyn I'. Clay V. Curtis V. Lynde V. Riding Brooksbank v. Smith Broonihead, Re Brougham v. Paulett Brown's Estate Brown v. Agnew V. Anderson V. Bazan V. Bridge V. Brown V. Buena Vista V. Campbell V. Claxton V. Cockerell V. Cousens V. Curtis V. Delaiield I'. Dysenger V. Edes V. Gauss V. Gay V. Goalsby V. Griffith «. Hancock !;. Hartford Ins. Co. V. Hiatt V. Houdlette V. Howard V. Hutchings u. Jarvis V. Johnson 54, 811, 381 89, 499 529 533 555 426 429 62 152, 156 686 181 376 197 431 641, 676 625 466 89, 500 630 498, 702 51 502, 519 502 428 178 121 217, 243 36, 492, 513, 710 70e 186 500 623, 661, 682 579 403, 466 593 668 228, 229, 708 87 623, 624, 661 744 188 25 99 11 87, 441 449, 452, 455, 469, 702 304 450, 454 Brown v. Jones V. Keach V. Keller V, King V. Latham V. McCoy V. McElroy V. McKinney V. Merrick V. Parker V. Pike V. Porter V. Quilter V. Radford V. Ralston V. Rutherford 292, V. Savannah Ins. Co. V. State Bank B. Tyler V. Vandyke V. Wilcox Brown Co. v. Wynona Browne v. Alston 1>. Browne Browning v. Paris Broxton v. Wood Brubaker v. Taylor Bruce v. Luck V. Robson V. Roney V. Tilson V. Wood Bruen v. Hone Brumagim v. Bradshaw V. Tallant Brundage v. Port Chester Brunson v. Ballou Brush V. Barrett V. Manhattan R. R. Co. Bryan u. Atwater 0. Board Education v. Butts V. Cowart V. Horseman 168, 169, I). Kales V. Ware V. Wilcox V. Winwood Bryant v. Crosby V. Pjckett V. Swetland Bryne v. Beeson V. Lowry Buchjin V. James 340, Buchanan v. Biggs 78 235 666 618, 639, 649 282, 284, 301 672 389 641 10, 488 33 311 641 429 163 76 315, 317, 320, 357 99, 103 184, 196, 228 328 721 40,41 59 74 123, 546, 549 481, 487 266 426 83 303 513 314, 318, 325 640 132 626 314, 389 330 606 51, 378 148 619, 649 159 540 569 192, 217, 260 150 17!) 243, 245 66.5 569 504 710 666, 669 685, 687 508, 533, 534 XXVIU T ABLE F CASES. Buchanan v. Buchanan 481 Burham v. James 510 ■ V. Munroe 542 Burke v. Jones 133, 188, 499 520, 521 V. Parker 340 V. Length 537 V. Woodman 389 V. Lynch 553 Buck V. Cooper 545 Burkhalter v. Edwards 644 V. Spofford 423 Burkhead v. Coulson 159 V. Swazey 514 Burkitt V. Blanshard 275 Buckey v. Culler 515 Burleigh v. Stott 400 Buckingham v. Ludlam 511 Burn V. Boulton 277, 282 294, 298 V. Smith 167, 195, 198, 199, 295 Burnett v. Bryan 488, 490 Buckley v. Daly 512, 543 'v. Rich 666 V. Williams 431 V. Snider 738 Bucklin v. Chaplin 211 Burnham v. Brown 360 361, 410 V. Ford 312, 484, 489, 603, 607 V. Stevens 23 Buckmaster v. Russell 181 184 222, 231 Burns v. Pillsbury 524 V. Needham 672 V. Swift 626, 656 Buckner v. Calcote 709 Burr V. Burr 272, 276, 298 V. Patterson 386, 387 V. Lewis 122 V. Street 548 — '■ — V. Williams 280, 288 Budd a. Walker 28, 326 Burrell v. Egremont 517 Buell V. Cole 73 V. Scott 466 Bufferlow v. Newsom 670 Burroughs v. Bloomer 589, 597, 598 Buffington v. Davis 208 Burrows v. Gallup 689 Euffun) V. Deane 84 V. Gore 502 Buie V. Buie 4 V. M'Whann 155 Buildon v. Walton 290, 294 Burt 0. Palmer 243 Bulger V. Roche 31,32 Burton v. Buckeye Ins. Co. 104 Bulkley v. United States 316 V. Lockert 329 Bull V. Lawson 56 V. Rutherford 373, 394 Bullard v. Bell 91 V. Stevens 228 BuUen v. Arnold 695 V. Wharton 185 Bullock V. Campbell 372, 873 397, 423 Busch V. Huston 651 V. Dean 747 Bush V. Barnard 173, 207, 227 V. Downes 94, 519 V. Brainerd 232 V. Perry 167 V. Bush 385 V. Smith 152, 185 V. Cooper 563 Bulware v. Robinson 395 V. Stowell 360, 361, 525, 727, Bunce v. Bidvvell 662 733, 734 V. Bunce 394 V. Van Kleck 39 V. Walcott 18, 24, 564, 580, 600, 601, 603 Bushe V. Stowell Bnshnell v. Bushnell 410 167 Bunder v. Snyder 426 Bushwood V. Bond 466 Bunker v. Athearn 487 Bushwell V. Roby 481, 484, 487 Bunnyan v. Murphy 86 Butcher v. Hixon 303 Bunt V. Ransom 575 Butler V. Carter 502 Buntin v. Lagow 714, 719 V. Howe 24, 600, 603 Burd V. McGregor 36 V. Hyland 629 Burden v. Stein 146 V. Johnson 476 Burdick v. Garrick 54, 135 489, 494 V. Kirby 331 V. Green 740 V. Price 281 Burditt V. Grew 133 V. Swinnerton 431 Burdoine v. Shelton 136 Butter V. Johnson 145 Buren v. Hone 721 Butterfield v. Forrester 452 Burgess v. Gray 115 V. Jacobs 185, 226, 232, 235 V. St. Louis, &c. R R. Co. 132 Button V. Guy 38 Burgoon v. Bixler 293 Buttrick v. Allen 59 TABLE OP CASES. XXIX Butts V. Perkins 285, 300 Cameron v. Smith 679 Byars v. Thompson 629 B. Wurtz ■ 81 Byers v. Bostwick 58,76 Camp, Re 629 Bynum v. Carter 674 V. Camp 671 V. Thompson 634 V. Pulver 60 Byrchall v. Bradford 519 Campau v. Dubois 620, 622, 624 Byrd v. Byrd 488, 602 Campbell, Re 529 V. Stewart 419 B. Baker 402 «. Wells 474 B. Boggs 65, 336, 340, 347 Byrne v. Beeson 666, 669 B. Brown 266, 898 V. Lowry 680 B. Crater 311 B. Calhoun 423 B. Graham 163, 500, 501 C. B. Holt 40, 41, 169 B. Laclede Gas Co. 23 Cable V. Welborn 430 V. Lewis 428, 431 Cadiz Bank i'. Slemraons 51 V. Long 532, 606, 71.3- Cadman v. Rogers 356 B. Seaman 152- Cadmus v. Duraon 168, 212 V. Seamen 463 Cadwallader's Appeal 151 B. Shoatwell 474 Cadwallader v. App 692 y. Stein 29- Cady V. Huntington 451 B. Sullivan 187 726, 731 702' Caesar i>. Bradford 414, 415 B. White 595 Cage V. Foster 395 B. Worthington 568- Cain V. Geinon 670 Canada Southern R. E. Co. V. Geb- Cairo, &c. R. R. Co. v. Parks 418 hard 408 V. Woolsey 635 Canby v. IngersoU 57' Calder v. Bull 39 Cane b. Geinon 670 Caldwell v. Black 580 Cann v. Sloan 481 V. Powell 722 Canton Pemale Academy B. Oilman 172, V. Roberts 395 26.5- V. Rodman 816, 353 Cape Fear, &c. Co. b. Casten 327 V. Thorp 600 B. Wilcox 327 Calhoun's Appeal 151 Cape Girardeau County v Harkinson 241, Calhoun v. Cook 672 246, 549, 566. V. Millard 156, Ifll Capehart w. Seaboard, &o E. E. Co. 108- Calk V. Lynn 657 Capen b. Woodrow 25 Calkins v. Calkins 40 Caple B. McCallum 613; V. Isbell 552 Capper b. Dickinson 68 Calks V. Weeks 167 Carden b. Bruce 379 Call K. Hagger 39, 40, 42 Careth b. Paige 231 Callahan v. Boazman 298 Cargill'B. Harrison 36 Callander v. Howard 443, 720 Carlisle b. Morris 299 Callard v. Tuttle 182, 315 B. Steller 600, 602 Callaway ». Molley < 40 Carll V. Hart 175, 288 Callendar v. Sherman 667 Carlton v. Ludlow Woollen Mill 249 Callender v. Colegrove 709 Carlyon v. Lannon 569 Caller v. Motzer 581 Carney b. Havens 832 Callis V. Waddy 702, 703, 746 Carnley v. Stanfleld ' 671 Calvert ». Carter 295 Carny v. Higdon 641 44 Carpenter v. Bowen 542 V. Sebright 431 V. Minturn 31 Caldwell v. Miles 146, 147 B. Scliermerhorn 581 Cambridge v. Hobart 186, 214, 223 V. State 179 Cameron v. Cameron 28 B. Thompson 672 XXX TABLE OF CASES. Carpenter v. Wells 30,31 Cayuga Bank v. Bennett 486 Carr v. Carr 52,54 Central Bank v. Solomon 44 600 Ceverly v. Brackett 69 6 Chaee v. Higgins 217 V. Foster 468 Chadbourn v. Henderson 641 V. Kobinson 211, 249 Chadbourne v. Swan 695 Carrier v. Chicago &c. E. E. Co. 604, 702 Cliadwick v. Chadwick 629 Carroll v. Carroll 521 V. Duval 73 V. Forsyth 236, 241 V. Felt 514 V. Gillion 630, 631 Cliaffee v. Jones 395 u. Eidgway 212, 224 Chaines v. Brady 568 Carruthers v. Trustees of Lexin gton 155 Challefaux v. Ducharme 672 Carshore v. Huyck 176, 288, 290 Chamberlin v. Cuyler 714 Carson v. Allen 76 V, Meeder 545, 563 31 Chambers «. Chambers 25 Carter v. Bennett 507 V. Fennemore 473, 481, 714 V. Cantrell 581, 604 V. Garland 185, 274 V. Denman 438, — ; — B. Lewis BO u. Hope 57 V. Mooks 714 V. Humboldt Ins. Co. 99 V. Pleak 673 II. Straphan 79 V. Ruby 208, 209, 238 ^ V. Taylor 540 V. Smith 478 Cartier «. Paige 33 V. Walker 307 Cartwright v. Cartwright 89, 500 Champenoes v. Fort 296 Caruthers v. Humphrey 540 Chancellor v. Wiggins 412 667, 671 Chandler v. Chandler 41 Carver v. Hayes 57 V. Hill 188 Cary o. Edmunds 689 V. Lawrence 304 V. Hills 495 688 13,16 , 483, 494 V. Spear 658, 660 V, Whitney 111 !.•. Thompson 466 Casborne v. Scarfe 540 V. Villette 50, 51, 583 Case V. Cushman 196, 254 V. Westfall 2 V. Keller 699 V. White 711 Casey v. Gregory 671 Chanteau v. Burlando 649 Casper v. Smith 465 Chapin v. Warden 216 Cass I). McDonald 296 V. Wright ,218 Castle V. Burditt 120, 130 Chaplin v. Givens 504 Castleton v. Fanshaw 476 Chapman's Appeal 198 Caston V. Caston 695 Chapman v. Aken 2 Catesby's Case 130 262 Cathcart v. Bowman 434, 438 V. Boyce 288 Catholic Bishop of Chicflg D.Bauer Z8Z V. Butler 184, 140 Catlin V. Chittenden 568 V. Corpe 564 V. Delano 640 V. Dickson 240 V. Skoulding 202, 714, 719, V. Goodrich 715 720 V. Holmes 432 Cato V. Gill 76 V. Kimball 439 Cauch V. McKee 41 V. Eochester 152, 102 Causler v. Wharton 527 V. Schroeder 698 Causten v. Burke 70 V. Templeton 634, 679 Cauthers v. Weaver 671 V. White 389 Cave V. Brookesby 429 Chappelle v. Olney 11 Cawer v. James 485 Clinrity v. Eiddle 464 Cawley v. Furnell 222 , 236, 266 Charles v. Scott 87 Cawtliorne v. Weisinger 478 Charlestown Bridge v. Warren Bridge 39 TABLE OF CASES. XXXI Charter v. Trevelyan 706 Cincinnati Bank v. Birkhardt 119 Charter Oak L. Ins. Co. a. Gisborne 529 Circleville Bank v. Iglehart 76 Chase v. AUianue lus. Co. 58 Citizens' Bank v. Hyams 386 V. Jones 291 V. Johnson 194 V. Stafford 721 Ciaflin V. Godfrey 58 Chasemore v. Turner 236, 369 Clane v. Sliepherd 511 Chauncey v. Rutter 743 Clanricarde w. Henning 706 Chaundflower v. Priestley 429 Clapp V. Browningham 649 Cheek v. Anderson 152 V. Hale 254 Cheetham v. Lewis 740 V. IngersoU 292, 304, 307 Cheever v. Perley 426, 437 556 557, 567 Clare v. Lockard 740 V. Railroad Co. 540 Claridge b. Mackenzie 665 Chelton w.Wilson 695 Clark V. Alexander 269, 720 Chemical Nat. Bk. v. Kissane 605 V. Baird 678 Chemung County Bank v. Lowery 37 V. Bank 41 Cheney v. Cooper 549 0. Bogardus 425, 426 V. Janssen 549 217 634 158 Cheriot v. Foussat 80 V. Courtney 643, 658 Cherry v. Lamor 146, 404 V. Crego 667 Cheseldine v. Brewer 639 V. Dutcher 195, 196, 200, 205, 207, Cheslyn v. Dalby 195, 264 214, 268, 410 Chester v. Wheelwright 298 V. Ford 135, 511 Chetham v. Hoare 705 V. Frail 23 Chevalier v. Durst 9,580 V. Gilbert 654 Chevat v. Lefevre 588 V. Hardeman 10 312, 489 Cheveley v. Bond 15 — '— V. Herring 58,88 Chew u. Baker 719 V. Hooper 485' Chicago Marine Bank v. Chandler 389 V. Hopkins 80 Chicago, &c. R. R. Co. v. Jenkins 24 V. Hougham 168 , 240, 241, 246 Chick V. Rollins 437, 655 V. Iowa City 362 V. Willetts 540, 549 V. Johnson 556 Chidsey v. Powell 208, 262 V. Jones 23 599 600, 601 Chievly v. Bond 51 V. L. S. & M. S. Ry. Co. 383 Childress v. Grim 28 V. McAnulty 438 Childs V. Jordan 413 V. McCann 579 641 V. McGuire 195 200, 481 Chiles V. Bridge 648 V. Moody 339 344 348, 350 V. Conley 634 — — V. Raap 76 V. Smith 121 V. Rayburn 540, 541 Chinnery v. Evans 557 V. Richardson 9 Clilpman v. Morrill 396 V. Sigourney 201 728, 731 Cholmondeley v. Clinton 133, 136, 1.38, V. Smith 451 145, 151, 505, 510, 531 544 564, 647 n. Tabor 682 Choquette v. Barada 695 V. Trail 578, 599 Choteau v. Barlow 528 V. Trindle 510 Christie v. Fosdick .353 Clarke v. Boorman 140, 530 Christmas v. Mitcliell 523 V. Clarke 670 0. Russell 8 1;. Cross 602 Christy v. Alford 687, 695 V. Dougan 691 V. Dana 549 V. Jenkins 383 V. Flemington 217, 243 V. Kellar 743 Church V. Feterow 181. 184 V. Marriott 469 Churchill w. Bertrand 380 V. Reeder 469 Cincinnati v. Evans 118 V, Slaughter 470 V. First Presbyterian Church 118 V. Wagner 625 XXXll TABLE OP CASES. Clarke v. Yonge 471 Cody V. Sheldon 403 Clauson v. McKune 242 Cofer V. Brooks 638, 641 Claussen v. La Franz 514 Coffee V. Emigh 157 Clay V. Clay 81, 509, 510 Coffin V, Anderson 53, 389 Clayton's Case 125 V. Bucknam 275, 292, 303, 306 Clayton v. Gosling 317, 318, 320, 356 ■- V. Rich 37 Cleave v. Jones 271, 272, 299 Coggs V. Bernard 562 Cleareland v. Crawford 613 Coggswell V. DoUiver 714, 720 546, 567, 732 Cogwin V. Ball 347 V. Williamson ' 141, 144 Cohen v. Aubin 166, 207 Cleaveland Ins. Co. o. Head 695, 696 Coit V. Campbell 161 V. Reed 133, 141, 150, 426 V. Tracy 731 Clemens v, Wilkinson 40 Colburn v. HoUis 625, 629 Clement v. Perry 683 V. Mason 673 Clementson v. Williams 7, 180, 187, 190, Coldcleugli u. Johnson 171, 549 208, 211, 213, 217, 220, 221, 229 Cole V. Hawes 433 Clemm v. Wilcox 666 V. Jessup 589, 591, 597 Clifford V. Dam 456 V. Joliet Opera House Co. 406 Clifton V. Hooper 454 V. Maxfield 667 Cline V. Catron 634 1: McGlathry 532, 702 Clinton v. Eddy 26 662 Clinton County v. Cox 545, 549, 557 V. Runnels 9, 580 Clipper V. Hutcllinson 11 Coleman v. Billings 6.34 637, 677 Close V. Samm 642 V. Davis 520, 529 Cloud ;;. Ivie 513 V. Forbes 733 Clougli V. Rowe 549 V. Holmes 11,12 Cluggage 0. Duncan 658 V. Lyman 428 Cluny V. Silliman 116 V. Lyne 148 Clute V. Vooris 619 V. Met. El. R. R. 163 Coady v. Reins 41 V. Walker 374 Coates' Estate 504 V. Whitney 52, 160 Coates V. Coates 474 Coleniore v. Whitroe 665 V. Roberts 547 Coles V. Kelsey 196, 210 Cobb V. Norwood 478 V. Portis 478 629 V. Withers 61 II. Thompson 31,33 Coley V. Henry 11 V. Wellborn 428, 429 Colgate V. Buckingham 3^ Cobham v. Moseley 212, 215 CoUard v. Tuttle 134 340, 510 Coburn v. HoUis 626, 631 CoUedge v. Horn 183 194, 266 V. Monroe Baptist Church 357 CoUester v. Bailey 10 Cochran v. Dawson 402 CoUett V. Frazier 244 V. Tatum 76 Collins V. Benning 339 353, 524 Cochrane v. Faris 695 V. DriscoU 312 Cocke V. M'Ginnis 50 V. Goodall 84, 133 Cockfield V. Farley 285 !>. Johnson 76, 693 V. Hudson 470 V. Mack 26 Cocking w. Ward 721 94 Cockram v. Welby 77, 85, 414 V. Smith 638 Co'okrill V. Cockrill 710 V. Thayer 413, 418 V. Sparke 182, 237 V. Tillon 569 Cocks V. Gray 553 V. Torrey 426 437, 540 V. Weeks 207 212, 225, 231 Collis V. Stack 186 231, 236 Codman v. Jackson 664 Collyer v. WiUcock 189 190, 227 , 274, 292 V. Rogers 87, 149 313 314, 822, 353 Colrick V. Swinburne 152 153, 463 V. Winslow 657 Coltman v. Marsh 190 Cody V. Quarterman 664 Colton V. Smith 543 TABLE OF CASES. XSXlll Columbia Bank u. Patterson 77 Conwell V. Buchanan 185, 223, 289 V. Sweeny 180, 238 V. Eyill 569 Colville V. Middleton 464 Conyers v. Kenan 624 Colvin V. Buckle 401 Conyngham Sciiool District v. Co- Comegys v. Carley 692 lumbia County 118 Comer v. Allen 198, 242 Cooji V. Babcock 678 Coming v. Troy Iron Co. 625 v. Chi. E. I. & P. ] R. Co. 710 Commissioners v. Smith 711 V. Clippard 66 V. Wybrants 502 V. Cook 194, 266, 316, 330 Commonwealth v. Baldwia 109 V. Cuibertson 61, 640 V. ChaMbre 130 V. Danvers 640 V, Cochituate Bank 367 V. Finkler 546 V. Duffy 47 V. Grey 38 V. Frost 422 V. Kendall 45 V. Hutchinson 109 V. Kimball 42 V. Johnson 109 V. Long 690 V. McGowan 169 V. Martin 195, 200, 202, 203, 295 V. Patterson 80 V. Nathan 403 V. Roxbury 633 692 V. Shortridge 130 456 41 V. Sanders 495 V. Whitney 378 V. Sayer 471 Cora. Mut. Ins. Co. v. Brett 217, 244 V. Williams 504, 522, 533 Compston v. MoNair 403 V. Wood 39 Compton V. Chandless 469 Cooke V. Ash 226 V. Johnson 280 V. Chambers 28 88 V. Dodson 635 Comstock's Appeal 511 398 Conant v. Hitt 10, 483 V. McGinness 507 Coneklin v. Pearson 292, 304 V. United States 115 Condit V. Tichenor 569 Cooksey v. R. R. Co. 28 Congdou V. Morgan 637 678, 694 Cooley V. Betts 524 Conger v. Barker 23 V. Rose 361 V. Lea 529 Coon V. Seymour 162 «.. Vandewater 86 Cooper V. Barber 465 Congers v. Jackson 466 V. Bickford 76 Congreve v. Smith 456 140, 143 Conkey v. Hart 42 V. Greene 162 Conklin v. Furman 404 V. Ord 642 V. Pearson 292 304, 307 V. Parker 198, 228 Conkling v. Thackston 246 V. Smith 610, 624 Conn V. Colbum 899 362 Connect v. Moyamensing 64 V. V. S. M. B. A. 102 Connell v. Bowdry 666 Coopwood V. Bolton 721 Connelly v. Pierson 292, 304, 307, 310 Coote V Whittington 495 Connor v. Goodman 607 Cope ». Humphreys 426 Conover v. Conover 56, 134, 179, 216 Coper V. Brooks 635 V. Wright 9,699 Coplinger v. Stokes 418 Conrad v. Hall 594 V. Vaden 412 Consalus, Re 289 Copley V. Dorraique 93 Consequa v. Fanning 721 Copp V. Lancaster 853 Constable v. Somerset 425 Corbett's Case 466 Constantine v. Van Winkle 640 Corbett v. Smyrna Bank 389 Contee v. Dawson 122 Corbyn v. Braraston 140, 143 Conway v. Eeyburn 195, 200 Cordwell's Estate 498, 724 V. Skrimpton 564, 566 Cork & Bandon Ry. Co. V. Goode 55 XXXIT TABLE OF CASES. Corn Exchange Bank v. Nassau Bank 381 Cramer v. Carlisle Bank 666, 668 Cornelius v. Giberson 641 , 642, 678, 680 Cranch v. Kirkman 714 Cornell v. Moulton 121, 122, 352 Crandall o. Gallup 482 Cornforth ». Smithard 182, 183, 239 Crane v. Abel 210 Corning v. McCuUough 91 V. Buchanan 669 V. Troy Iron Co. 666, 677 V. Page 546 Cornisli v. Cawsay 126 V. Robinson 673 Cornwall v. Gould 69 Cranz v. Croger 664 Cortelyou v. Lansing 66, 67, 69, 662 Crary v. Goodman 617, 662, 663 429 Grassier v. Gano 313 Coster V. Murray 504 505, 714, 717 Crawbaugh v. Hart 478 Cotes V. Harris 719 Crawford v. Childress 33, 175 Cotherman v. Cotherman 28 V. Goulden 386, 455 Cottam V. Partridge 73, 720 V. Taylor 546 , 551, 552, 564 Cotterell v. Button 580 Creed v. Hartman 456 V. Long 568 V. Lancaster Bank 514 Cotton's Case 575 Creighton v. Rosseau 353, 358 Cotton V. Manurer 26 Cremer's Estate 292 V. Partridge 72 Cresman v. Caster 189 Couch V. Sutton 569 Cresse v. Myer 151 Coulson V. Walton 136, 137, 142, 537 Creuse v. Defiganiere 217, 238 Coulston V. Carr 428 Crim V. Kissing 83 Coulton V. Walters 145 Crippin v. Morrison 542, 543 Council V. Moyamensing 55,92 Cripps V. Davis 196, 236, 242 Coursey v. Covington 77 Crisler v. McCoy 295 Coursin v. Penn. Ins. Co. 106, 108 Crispin v. Hannovan 655, 656, 694 Courtenay v. Williams 474, 498, 724 Crist V. Garner 211 Covar V. Cantelou 158 Criswell v. Altemus 691, 692 Covington v. McNickle 682 Crittenden v. Brainard 548 Cowan V. Magauran 187, 213 Croaker v. Jewell 445 V. Silliman 429, 430 Crocker v. Avery 33 Cowdrey v. Coit 438 V. Clements 132, '593 Cowell V. Oxford 58,88 Croft V. Arthur 704 Cowles V. Garrett 674 Crofton V. Ormsby 536 Covpley V. Furnell 207, 231 Cromad v. StuU 198 Cowling e. Higglnson 466 Croman v. Stall 242, 262 Cowper V. Godmond 380, 393 Cromelin v. Brink il23 V. Pollard 429 Crompton v. Pratt 298 Cox V. Berry 38 Crook V. Glenn 549, 564 V. Brown 40, 402 Crosby v. Mc Willie 478 V. Cooper 740 V. Stone 26,27 V. Cox 702, 704 Crosier v. Gans 10, 602 V. Davis 41 V. Tomlinson 50,51 V. Dolman 502 Cross's Case 404 V. Parry 294 Cross V. Allen 399 Coy V. Nichols 10 V. Ballard 402 Coyngham's Appeal 69 V. Conner 181, 226 Cozzens v. Farnam 601 467 V. Fran an 23 Crosse v. Young 429 Craft V. BuUard 569 Crossen v. Loveland 568 V. Thomas 353, 357 Crossley v. Ham 359 Craig V. Goodman 634 V. Lightowler 466 Craige v. Callaway 175 Croswell v. Crane 22 Crain v. Paine 548 Crowder v. Nichol 226 Crallan v. Oulton 500 Crowell V. Peebe 634 Cram v. Beeder 115 Crowther v. Rowlandson 705 TABLE OP CASES. XXXV Crozin v. Adams 395 Darling v. Wells 39 CucuUu V. Hernandez 557 Darlington's Appropriation 426 Culbert v. Fleming 510 Darly o. Isbell 2 Culvert u. Lanner 40 Darnall v. Adams 578 (^umberling v. McCall 104 V. Magruder 316, 317 Gumming v. Berry 133, 134 Darrell v. Moslier 468 Cummings v. Gassett 232, 235 Darwin v. Smith 330 V. Wyman 629, 631, 672, 674 Dash V. Tupper 29 Cummins v. White 74 Daubigny v. Duval 63 Cunkle v. Heard 241 Davenport v. Sebring 622, 688 Cunningham v. Ashley 109 — - V. Short 25,26 V. Hawkins 567, 569 V. Stafford 502, 519 V. McKindley 530 Davenport Bank v. Price 354 V. Patten 686, 696 Davidson ». Beatty 656, 674 V. Pell 405 V. Delano 280, 303 V. Potter 695 259 272, 307 V. Robertson 672 V. Lawrence 37 V. Smith 399 V. Marshall 291 Curlewis v. Mornington 485, 493 V. Petticolas 1 Currey v. Allen 704 V. Phoenix Ins. Co. 99 Currier's Estate 742 V. Sharpe 80 Currier v. Earl 666 Davies v. Cram 348, 383 V. Gale 599, 656, 696 V. Edwards 259, 272 282, 283 V. Lockwood 219, 238 V. Smith 173, 234, 236 253, 254 Curry v. Sanders 38 V. Williams 466 Curtis V. Home Ins. Co. 106, 108 Davis's Estate 525 Curzon v. Edmonds 204 Davis V. Amy 296 Cushman v. Blanchard 655, 656 V. Anderson 540 Cutler V. Motzer 311 V. Clay 568 V. Tuttle 514, 537, 538 V. Cotton 532, 713 Cutter V. Emery 135 V. Cooke 24, 601 V. Wadsworth 120 V. Davis 97, 104 V. Wright 593 V. Easley 676 Cutts V. Hardee 38,39 V. Ehrman 746 V. York Manfg. Co. 552 V. Eppinger 325, 352 Cuyler v. Brodt 508 V. Frink 69 V. Garr 312 484, 488, 490 D. V. Gorton 1). Harper 331, 385 27 Dabler v. Snavley 520 V. McArthur 694 Daerdemay v. Oland 428 V. Miner 41,44 Daggett V. Daggett 378 V. Noyes 261 Dale V. Birch 343 V. O'Ferrall 37 V. Frisbie 38 V. Sanders 57 428 V. Shoemaker 84 Dalhande's Succession 73 y. Smith 333 , 714, 720 Dana v. Conant 403 V. Steiner 194, 197 V. Kemble 59 V. Tiern 714 464 V. Webb 468, 470 Danforth v. Culver 184, 186, 207, 216, 249 V. Wetherell 538 Danglada v. De la Guerra 478 Davy V. Field 523 Daniel v. Day 10, 312 Dawley v. Van Court 636 V. Whitfield 383 Dawson v. Callaway 96, 496 Daniels v. Bridges 152 V. Dawson 508, 522 Dann v. Spurrier 161 V. Dyer 428, 432 Darby v. Mayer 80 V. Real Estate Bank 53, 389 XXXVl TABLE OF CASES. Day V. Baldwin 141, 266 Dennison v. Goehring 74 740 Denniston v. Rist 746 V. Roth 613 Denny v. Eddy 502 V. Wilder 694 V. Marrett 262, 270 Dayton v. Borst 58 V. Smith 593 Deal V. Patterson 40,44 Denton v. Embury 337, 348 Dean v. Crane 484 Denys v, Shuckburgh 454 V. Dean 133, 513 614, 520 Department of Public Parks, Ex parte 649 V. Hewitt 249, 730 Depeyster v. Gould 538 V. Pitts 212, 216, 217, 232 Deputron v. Young 657 V. Thwaite 706 Derrick v. Lamar Ins. Co. 106 Dease v. Jones 600, 603 Derrickson v. Cady 335 De Bauchant v. Goldsmid 63 De Rutzen v. Lloyd 466 De Camp «. Crane 668 Dervlent v. Lloyd 659 V. Mclntlre 292 Deshon v. Eaton 167 De Cordova v. Galveston 40 Des Moines v. Harker 109 Decker v. Decker 386 Dessaussure v. Murphy 699 Decouch V. Laveder 33, 604 519, 530 Deuatch v. Newsom , 671 De Forest v. Hunt 235 Deueh v. Walker 469 V. Leete 434 Devayne v. Noble 62,54 De Freest v. Warner 198, 242 Devereaux v. Henry 262 De Grann v. Mechan 148, 157 Devine v. Bullock 470 Dehart v. Gard 426 V. Wilson 110 De Haven v. Bartholomew 93 Devone v. Sunderland 433, 436 Deimer v. Sechrist 426 Devor v. Rerick 28 De Kay v. Darrah 9, 488 580, 584 Devyn v. Schaefer 664 De Koslowski v. Yesler 281 Dewdney, £a; parte 135, 187, 188, 474, 476 Delahay v. McConnell 568, 569 Dewey v. McLain 639 De Lane v. Moore 150 Dexter v. Arnold 136 546, 552, 567 Delaney v. Fox 664 Deyo V. Jones 224, 481, 483 De Lany v. Mulcher 674 Diamond v. Tobias 420 De la Torre v. Barclay 192 206, 369 Dickens v. Johnson 678 Delevan Nat. Bk. v. Cotton 400 V. Storeraan 234 De Lavalette v. Wendt 353 Dickenson v. Leominster Savings Bk. 324 De la Vega v. Butler 686 Dickerman v. Burgess 148 V. Vianna 36 Dickerson v. Derrickson 402 Delaware, &c. R. R. Co. v. Burson 55, 92 V. Morrison 40 Delaware Bank v. Cotton 293, 738 Dickinson v. Breeden 641 De Lisle v. Priestman 69 V. Brown 642 Deloach v. Turner 196, 249 V. Collins 746 Delorain v. Brown 136 V. Conway 181 Delworth v. Carter 86 V. Hatfield 195 256, 269 Demandray v. Metcalfe 62,68 V. Lott 210 De Mares v, Gilpin 158 V. McCanny 8,167 Demarest v. Wynkoop 15, 18, 24, 134, 546, V. Mayor, &c. 466, 685 647, 648, 651, 662 601 603, 605. v.- Teasdale 502 512 621, 522 Demmy's Appeal 478 V. Williams 715 De Moss V. Newton 37,38 Dickson v. Desiree 438, 436 Den V. Legget 646 Didier v. Davidson 40, 691 V. Moore 601 603, 641 Diefenthaler v. Mayor, &c. 27, 146 V. Putney 644 DieflFenbach v. Roch 81 V. Richards 10 680, 603 Dighton V. Greenvil 505 Denliam v. Holman 680, 685 Dikeman v. Parrish. 643 092, 695 Denise v. Denise 289 Dill V. Wareham 380 Dennett v. Crocker 626, 627 Dillard v. Phellson 602 Dennick v. Railroad Co. 35, 491 Dillenbaugh's Estate 519 TABLE F CASES. XXXVll Dillingham v. Skim 76 Douglass V. Cline 541 Dillon V. Brubcke 69 V. Elkins 184 225, 702 V. Dougherty 40,41 V. Howland 402 J'. Mattox 641, 681 V. Reynolds 403 Dinsdale v. Dudding 502, 519 Douthwaite v. Tibbutt 168, 192 Dinsmore v. Dinsmore 197, 731 Dover, Ex parte 519 Dix V. Burford 502, 519 V. Maestaer 78 58 Dow V. MuKentiy 661 Dixon V. Clark 6-22 V. Stephens 656 V. Nutall 354 Dowell V. Tucker 23 Doane v. Russell 66 Dowling V Ford 305 Dobbs V. Humphrey 260 Downer v. Baxter 395 Dobler v. Snavely 520 V. Ford 670 Doblier v. Agricultural Ins. Co. 100 Downes v. Bullock 135 502, 519 Dobson V. Murphy 637 V. Charlestown Bank 54 195 V. Cooper 665 Dodd V. Vannay 340, 347 V. Pheriix Bank 386, 389 Dodson V. Mackey 196, 266 Downing v. Ford 23, 603 Doe V. Ashmore 671 V. Miller 634 0. Barksdale 603 Downs V. Sooy 426, 555 674, 677 Dows V. Durfee 721 I'. Danvers 641, 693 Doyle V. Ward 10,23 V. Deveeber 564 Dozier v. Ellis 604 • V. Eslava 688, 695, 697 Drake v. Curtis 632, 633 V. Grafton Bank 425 Draper v. Shoot 678 679, 680 V. Hellings 672 Drayton v. Marshall 555 V. Irwin 11 Drennen v. Walker 580 : V. Jones 17 Dresser v. Dresser 73 V. Jesson 17 Dreutzer v. Baker 28 V. Roberts 110 Drew V. Towle 649 V. Seaton 671 Drexel v. Baimond 340 D. Surtees 555 Driver v. Hudspeth 559 V. Watton 129 Drummond v. Lant 553 V. Williams 555 Drury v. Vannevar 376 Doebler v. Snaveley 88, 89, 500 Drysdale's Appeal 724 Don V. Lipmann 36 Dubois V. Delaware, &c. Canal Co. 76, 77 Donahue v. O'Connor 682 V. Mitchell 665, 671 Donald v. Sims 426, 555 Ducker's Succession 281 Donnelly v. Brooklyn 100 Duckett V. Crider 601 0. Donnelly 704 Duckworth v. Roach 472 V. Simonton 545, 563 Dudley v. Falliot 429, 432 Doolittle V. Tice 614, 616 Duffett V. Tuhan 311 Dore V. Swartwout 591 Duffy, Re 421 Dormer v. Fortescue 471 V. Ogden 123 Dorr V. Rohr 589 Dugan V. Gittings 147 515 600, 603 V. Swartout 198 Duguid B. Scholfleld 198, 242, 245, 246, Dorrance v. Morrison 353 247 261, 267 Dorsey v. Clarke 614 Duke V. Harper 666 V. Mo wry 80 Duke of Leeds v. Amherst 150, 162 Doswell V. De la Lauzier 695 Duke of Norfolk's Case 68 Doughty V. Doughty 584 Dukes V. Leowie 76 Dougherty v. Wheeler 357 Dunbar v. Johnson 59 Douglas V. Forrest 15 Duncan v. Earl of Moray 464 v. Irvine 23 V. Helm 297 V. New York 597 Dundas v. Muhlenberg 60 Douglass V. Blackstone 729 Dunden v. Gaskell 88, 505, 519 XXXVlll Tj 4.BL E P CASES. Dunham v. Dodge 732 East India Co. v. Campion 148, 163 V. Lege 580 V. Paul 228, 847, 374, 378, 447, 449 437 Eastman v. Forster 546 Dunn V, Fleming 715 Easton v. Long 353 V. O'Keefe 358 V. McAllister ' 316, 353 V. Stottsburg 148 Eastwood V. Kennedy 35, 492 V. Tillery 541 V. Saville 291, 299, 305 Dunne v. Doran 535 Eaton V. Gillet 288 Dunning v. Ocean Bank 483 V. Jaques 543 Dunsliee v. Grundy 667 V. Sanf ord 600 Dupas V. Wassell 668 V. Supervisors of Manitowac 44 Duplex V. De Roven 29, 51 607 V. Walton 524 Duramus v. Harrison 22 Ebberstein v. WiUets 159 Durant v. Essex Co. 80 Eckert v. Wilson 166 189, 207, 211 Durdon v. Gaskell 505 Eckford v. Evans 193, 259 Durel V. Tennison 693 695 Eckstein v. Shoemaker 39 Duroure v. Jones 10, 15 580 603 Eddins v. Grady 11 Duryea v. Andrews 324 Eddowes v. Neel 401 Dusenbury v. Keiley 454 Edgar ;;. State 310 Dutchess Cotton Co. v. Davis 87 Edge V. Edge 412 Dutton V. Insurance Co. 103 V. Medlar 625 ' V. Salmonson 375 Edgerton v. Bird 636 V. Warshauer 540 Edings V. Whaley 148 Duty V. Graham 545 549 Edmands v. Tipton 549 Duval V. Terry 133 V. University 531 DuvoU V. Wilson 510 Edmonds v. Goater 183, 186, 264 Dux V. Postmaster-General 115 Edmonstone v. Thomas 717 Dvpinell v. Edey 72 V. Thompson 714 Dyatt V. Letcher 719 Edmunds o. Dacons 233 Dyer v. Asliton 294 V. Downes 264, 269 V. Bannock 418 V. Waugh 9,502 V. Dupey 460 V. Wiggin 57 403 Edsell v. Buchanan 136 V. Gill 38,41 Edson V. Munsell 467 V. Walker 272, 288, 307, 714, 716, Edwards v. CuUey 243, 261 720 V. Ingraham 413 V. Waters 529 V. Jarvis 11 V. Witter 311 V. Jones V. Lycoming Ins. Co. V. McCaddon 285, 29& 99 38,39 E. V. Nichols V. University 59 508 Eagan v. Kergill 312 V. Warden 534 Eager v. Commonwealth 18 ,603 EflSnger v. Henderson 298 Eagle V. Brunswick Bank 629 Egberts v. Dibble 30,33 Eagle Bank v. Smith 57 Ege V. Barnitz 402 Eames v. Savage 411 ,413 V. Medlar 634 Earle v. Biekford 380 Egerton v. Logan 340 V. Hale 667 Egery v. Decrew 272 V. Oliver 232 Eggington v. Lichfield 454 Early v. Garland 678 Egremont v. Hamilton 135 Earnshaw v. Stewart 549 Eicke V. Nokes 239 East V. East 497 Eigleberger v, Kibler 704 Eastabrook v. Moulton 360 ,361 Elder v. Bradley 1 Easton R. R. Co. v. Relief Ins. Co. 101 1 V. Dyer 215 East Hampton "• Kirk 613 632 ,633 V. Henry 84 TABLE OF CASES. XXXIX Eld ridge, In re 515 Evans v. Bacon 138 79, 133 V. Carey 179, 185 V. See Yup Co. 613 V. Davies 285, 294 Elfe V. Cole 540, 542 V. Erie County 118 Elkins 0. Edwards 61, 616 V. GaUaway 740 Elkinton v. Newman 96 V. Hardeman 332 EUicott V. Nichols 293, 400, 737 V. Huffman 424, 437 V. Pearl 676 V. Jones 239 Elliot V. Cronk 56 V. Lee 411 V. Lawton 333, 335, 385 V. Montgomery 38, 713 Klliotson V. Feetham 464 V. Simon 260 Elliott V. Dyke 684 V. Teneedy 499 V. Leake 185, 209 y. Vaughan 432 V. Loohrane 40 v. Younge 724 V. Mitchell 639 Evarts v. Nason 604 V. Pearce 635, 638, 641 Everett v. Robertson 222 666, 671 V. Whitfield 28 Ellis V. Essex Merrimack Bridge 58 Evertsen v. Tappen 522 V. Kelso 456, 703 Evertson v. Miles 58,60 V. Linck 53, 389 V. Newport Nat. Bank 362 V. Welch 430 Ewell V. Chi., &o. B. R. Co. 311, 313 Ellison V. Allen 491 V. Daggs 28, 400 V. Cathcart 649 V. Tedwell 470 V. MofEat 151 Ewer V. Lowell 672 Ellsworth V. Brewer 57 Ewing V. Bailey 122 Elmendorf v. Taylor 133, 135, 137, 138, V. Burnett 623, 637, 641 674, 676, 142 147, 531, 534, 566 678, 679 Elmore v. Robinson 272 Exeter Bank v. Sullivan 181, 214, 226, Elsberry v. Boykin 549 227, 726, 731 , 733, 737 Elward v. Deifendorf 139, 395 Express Co. v. Caldwell 109 Ely V. Holton 43 Eye's Appeal 123 Embury v. Jennisou 589 Emerson v. Atwater 569 V. Miller 212 F. V. Thompson 473, 477, 481 Emery v. Day 318, 325, 352 Fadden v. Fortier 299 Emmons v. Hayward 329, 347 Fagan v. Rosier 635, 637 V. Overton 736, 737 Failing v. Schenck 693 Enfield v. Day 662, 663, 674 Fain v. Gartliright 649 Engel V. Fischer 352, 590, 597, 605 Fairbanks v. Dawson 293 England v. Slade 665, 671 V. Long 24 Engleman v. State 131 Fairchild's Case 26 English V. Lane 569 Fairchild v. Holly 298 V. Wathen 287, 289 Fairfax v. Fairfax 473 Enos V. Hunter 513 Faison v. Bowden 179, 240, 262, Eppes V. Mississippi, &c . R. R. Co. 407 278 Erie E. R. Co. v. Del. L. & W. R. R. Co. Falls V. Torrence 157 161 Fannin v. Anderson 608 Erskine u. North 567 Fanning v. Chadwick 74 540 !,■. Colt 478 Estebene v. Estebene 299 V. Willcox 695, 696 Estes V. Blake 377 Fargo V. Buell 295 V. Kyle 38 Farley v. Rogers 664 V. Stokes 347, 349, 523 V. Kustenbader 197, 198, 212, 232, Etter V. Finn 489 254 Eubanks v. Leveredge 141, 144 Farmer v. Ray 699 xl TABLE OF CASES. Farmers' Bank v. Clark 231 Ferguson v. Wright 73,74 V. i'lanters' Bank 54 Ferris v. Henderson 702 Farmers', &c. Bank v. Butchers', &c. 0. Parris 340 346, 524 Bank 389 V. Ward 119 V. Payne 57 825, 352 F. & M. Bank v. Leath 478, 481 Ferry o. Ferry 361, 410 Farmers' & Mechanics' Bank ;;. Plant- Person v. Sanger 147, 150 ers' Bank 389, 524 Fewell V. Collins 10 580, 600 V. Wilson 691 Field V. Boyntcn 642 Farnam v. Brooks 147, 507, 510, 530, !,■. Wilson 425, 426, 555 702, 721 Fillet V. Linsey 214 Farrar v. Fessenden 635, 636, 679 Fincke v. Funk 584. Farringer v. Ramsay 513 Findley v. Stewart 606, 711 Farrington v. Barr 513 V. Patterson 600 V. Lee 718 Fink V. O'Neil 115 V. Paine 468 Finkbone's Appeal 172, 386 Farrish v. Coon 650 Finlay v. Cook 648 Farrow v. Bullock 695 Finnell v. O'Neal 419 V. Edmonson 641 Finney v. Ackerman 41 Farwell v. Jacobs 88 507 510, 533 Fatheree v. Fletcher 579 First Congregational Soc. v. Miller 225, Faulkner v. Bellingham 85 232, 235 V. Delaware, &c. Canal Co. 599 First Nat. Bank v. Ballou 281 V. Jones 377 V. Price 354 Favorite v. Booher 604, 605 Fischer v. Hess 185 Fawke v. Slaughter 514 Fish V. Wilson 522 Fay V. Barker 376 Fishar v. Taylor 621 V, Cheney 540 Fisher v. Bennehofl 634, 635 Faysoux v. Prather 10, 313, 580, 602 V. Boody 150 Feamster v. Withrow 61 240, 487 Fearn v. Lewis 203, 231, 264 V. Fisher 595 V, Shirley 579 V. Harnden 8,607 Fears v. Sykes 82, 33, 36, 469, 492 V. Mayor, &c. 456 Feazle v. Simpson 740 V. Mossman 478, 546 Feeklen v. Carrington 589 V. New York 426, 546 Fee V. Fee 605, 703 V. Pond 457 Feeter v. Heath 76 79, 690* Feldman v. Gamble 298 V. Tucker 520 Fellet V. Linsley 167 V. TuUer 702 Fellows V, Guimarin 179 Fishwick v. Sewall 10, 468 484 490, 529 Fells Point Savings Ins. v. Weedon 316, Fisk V. Stewart 549, 566 322, 353 Fiske V. Briggs 40 Feltmakers' Co. v. Davla 55 V. Hibbard 193, 259 Felton I'. Dickinson 77 V. Needham 167, 187 Fenno v. English 333 Fitch V. Hillary 714 Fenson v. Sanger 532 634 Fenton v. Emblees 325, 326, 327 V. Redding 378 Fenwick v. Reed 554 Fitts V. Beardsley 702 Fergus «. Gore 133 Fitzhugh V. Anderson 10, 18 580, 601 Ferguson v. Bartholomew 688 Fitzpatriek v. Smith 569 V. Brown 96 Flack V. Haynie 350 V. Fyffe 484 Fladory' v. Winter 502, 608 V. Peden 625 Flagg V. Euden 426 V. Scott 479 Flanders v. Train 669, 670 V. Taylor 167, 186, 207 Fleming v. Burnham 311 V. Union Furnace Co. 562 V. Culbert 55 337 349, 713 TABLE OP CASES. xli Fleming v. Hayne 278 Foster v. Hodgson 524 V, Stanton 241 V. Jacks 52, 333, 335 Flemings v. Griswold 580 V. Johnson 395 Fletcher v. Gillan 198 V. Letz 625 V. HolBies 542 V. Mapes 429, 430, 431 V. Jackson 395 V. Maxey 478 V. McFarlane 672 V. Morris 671, 672 V. Piatt 87 429, 431 V. Spaulding 31,34 V. Risou 527, 713 V. Updike 246, 286 V. Smith 262 Flight «. Thomas 464, 465 V. Starkey 276, 482 Flint V. Rogers 369 V. Trustees 514 Flood a. Patteson 135 Fouok V. Brown 426 F'lournay v. Wooten 714 Foulke V. Bond 618 Flower, Succession of 607 Foust V. Trice 672 Flowers v. Foreman 31, 33, 438 Foute V. Bacon 733, 734 Floyd V. Mintsey 653 Fowke V. Beek 649 V. Pearce 259 V. Darn all 648 Floyer v. Lavington 136 Fowle V. Kirkland 74 Flynt V. Hatchett 580 V. Welsh 430, 432 Fogarty v. Sawyer 540 Fowler v. Austin 76 Foley V. Hill 52,53 V. HoUins . 469 Folts V. New York 113 V. Sharp 740 Foote V. Bacon 307 Fox V. Blossom 558, 564 Forbes v. Smith 486 V. Cash 622, 531 Ford V. Babcock 27, 591 597, 598 V. Fisk 719 V. Clark 218 , 714, 715 «. Lyon 510 V. Hyer 555 715 V. Langee 96 V. Tay 529 V. Phillips 740 V. Zimmerman 709 V. Wilson 677, 687 Foxcraft v. Lyster 133 Fordham v. Wallis 481, 488 Fraley v. Atherton 467 Forest v. Jackson 635 637, 639 V. Kelly 278 Fornara v. Brooks 133 Francestown v. Deering 514 Forney v. Benedict 249 254, 481 Francis v. Grower 502 Forrest v. Douglas 491, 493 666 Forster v. Cumberland Valley E R. Frank v. Brewer 323 Co. 92 V. Lanier 381 24 Frankersley v. Robinson 25 Forsyth v. Clark 514 Franklin v. Medina 666 486 V. Newsom 659 V. Kipley 41, 43, 45 1 Franklin Bank, In re 53, 389 Forsythe v. Bristowe 248, 264 Franklin Fire Ins. Co. v. Updegraff 99 Forte V. Vine 430, 431 Franklin Ins. Co. v. McCrea 103 Fort Edward Nat. Bank V. Washing- | V. Mereda 667 ton Co. Bank 388 Fraser v. Phelps 74 Fort Scott V. Hickman 198, 222, 242 V. Skey 431 V. Schulenberg 713 Fratt V. Clark 60 Fortune v. Hays 226 Frayler v. Sonora, &c. Co. 716 Forward v. Dietz 672, 673 Frazer, Re 512 Foster's Case 85 Freake v. Cranefeldt 493, 498, 499 Foster v. Alanson 720 Frean v. Drinker 445 V. Cumberland Valley R. R 92 Frederick v. Grey 672 V. Hawber 273 Freehill v. Chamberlain 363 V. Essex Bank 63, 389 Freeland v. McCuUough 93 V. Grizzle 622 V. Heron 721 xlii TABLE OF CASES. Freeman v. Barnes V. Dowling V. Heath ■ V. Stacy 517 519 6, 667 84,85 Freemount Ferry v. Dodge Co. Cora'rs 161 French v. Davis 478 V. Frazier 179, 207, 216 V. O'Neil 414 V. Pearce 619, 621, 649 Freshwater v. Baker 746 Frey v. Kirk 214, 216 Freyburg v. Osgood 190, 289 Friend v. Eastabrook 664 Fries v. Boisselet 180, 184, 189, 194, 211, 225 Frink v. Le Roy 651, 562 Fritz !>. Joiner 23 V. Jones 599, 601 V. Thomas 473, 482, 483 Frosh ti. Sweet 25, 39 Frost V. Bengough 168, 192, 199, 201, 202, 203, 244 V. Brisbin 589, 592, 696, 597, 699 0. Coon 151 : V. Earnest 430- V. Frost 610, 611 Fry V. Clow 824 V. Kirk 181, 214 Fryer v. Roe 372 Fulensneider v. United States 312 FuUam v. Union Ins. Co. 100, 709 Fuller v. Eddy 542, 549 V. Hancock 187 V. Redman 476, 497 V. Sweet 666 Fullwood V. Fullwood 156, 162 Fulthrope v. Foster 564 Funk V. Voneida 434, 438 Fuqua v. Young 413 Furlong v. Garrett 664 V. Stone 412 Furman v. Parke 76 Fussleman v. Worthington 666 G. Gage V. Dudley 714, 715 V. Smith 579 Gailer v. Grennell 167, 233 Gaines v. Miller 607 Gainsford v. Grammar 217 Galbraith v. Galbraith 426 Gale V. Capron 306 Gallagher v. Bennett 666, 668 Galligher v. Hollingsworth Gallup V. Bernd Galpin v. Barney Galvin's Estate Galway v. Met. El. R. R. Co. Gamberling v. Meyer Gamble v. Hicks Ganaway v. Miller Gans V. Frank Garden v. Bruce Gardner, Re V. Cummings V. Lindo V. M'Mahon 176, 465 58 186, 281 509 152 94 411 73 27, 31, 36 301, 353 331 528 26 188, 196, 228, 229, 264, 260 V. Peyton V. Tudor V. Webber Garesche v, Lewis Garfield v. Bemis Garland v. Hull V. Milling Garlin v. Strickland Garrard v. Tuck Garraway v. Hopkins Garrett v. Garrett V. Ramsay Garrison v. Sanford Gartrell v. Linn Gary v. May Gates V. Jacob V. New York Gathright v. Wheat Gaucher i\ Gondrau Gausen v. United States Gay V. Allen V. Edwards V. Mitchell Gayette v. Bethune Gaylord v. Loan Gebhard v. Sattler Gee !>. Gee Geigers v. Brown Gelpcke v. Dubuque Gemberling v. Meyer Genin v. IngersoU Genoa v. Woodruff George v. Gardner — — V. Jesson V. Putney Georgia Ins. Co. v. Elliott V. Endicott Gerald v. EUy Geranger v. Summers Gest V, Heiskell Getchel v. Jewett 340, 524 216, 223 742, 743 311 39,41 74 493 415 517, 518 31,33 394 684 432 195, 198 449 136 113 262 167, 179 115 78 623 623 629 184, 207, 208, 214 606 614 10, 484 364 94 296 364 28,37 603 671 217 243 428 468 517 140 TABLE OP OASES. xliii Ghee v. Gainesville 741 Glenn v. M'Cullough 186 Gibbons v. Goodrich 40 V. Williams 408 Gibbs V. Bryant 394 Glensey v. Fleming 238 Gibson v. Baghatt 242 Glinston v. Audly 431 1'. Choteau 115, 118 Gloninger v. Hazard 74 V. Clarke 110 Glover v. Collins 76 V. C. & N. Tr. E. R. Co. 83 11. Wilson 115 V. Farley 541 Glyn V. Baker t)3 V. Jayne 640 Glynn v. Bank 8U3 V. Grosvenor 261 Goate V. Goate 206 V. Peoples 304 Goddell V. Jackson 22 V. Vaughn 673 V. Kimmell 134 151 160 Giddings v. Smith 640 Godden v. Kimmell 509 Gilbert u; Comstock 290 Godfrey v. Rice 373 403 V. Terry 141 144 V. Piatt 485 Godwin v. CuUey 239 241 269 — ^ V. Sleeper 511, 529 Goetz V. Voelinger 32 Giles V. Baremore 564 Goewey v. Eigg 626 V. Barmore 426 437, 567 Goff V. Pawtucket 312 V. Ebsworth 671 V. Robbins 132 Gilkyson v. Larue 181 194, 211 Gold V. Whitcomb 214 716 Gill V, Fauntleroy 680 640, 673 Goldsmith v. Tunbridge Wells, &c. Gillet V. Balcom 550 Improvement Co. 466 Gillett V. Hall 80 Golson V. Hook 634 Gilliland v. Woodruff 614, 659 Gonsoulin v. Adams 410 Gillingham v. Gillingham 242, 246 Goode V. Webb 121 V. Waskett 444 Goodell V. Brandell Nat. Bk. 324 Gillon V. Bodington 450, 454 Gooden v. Insurani;e Co. 374 Gilman v. Cutts JO, 43, 45 Goodenough i». Wells 323 V. School District 87 Goodenow v. Ewer 540 V. Wilson 655 V. Snyder 60 V. Wills 542 Goodhue v. Barnwell 490 529 Gilmer w. McMurray 185, 225 Gooding v. Varn 11 V. Morris 160 Goodman ». Monks 86 492 Gilmore v. Bussey 851 V. Smith 478 V. Pope 87 Goodrich v. Conrad 478 723 Goodright v. Cator 641 Gilson V. Stewart 88 V. Forrester 640 Girard Bank v. Penn. Township Bank 54, Goodtitle v. Baldwin 110 379, 389 Goodwin v. Araoskeag Ins. Co. 99 100 Girdner v. Stephens 87,45 B. Buzzell 185 282 Gisborne v. Charter Oak L. Ins. Co. 529 V. Chaffee 58,88 Gittens v. Lowry 643 V. Cinn. & W. W. Canal Co 161 Givens v. MoUyneaux 666 V. Parton 7.S8 Gladwyn v. Hitchman 550 V. United States Ins. Co. 721 Glass V. Ellison 540 Goodwyn v. Goodwyn 455 531 V. Walker 103 Gordon v. Gordon 513 1). Williams 313 V. Kerr 150 Glassington v. Rawlins 120 i>. Mounts 40 Gleadow v. Atkin 303 r. Schmidt 810 Gleim v. Ries 166 207, 211 Gore V. Hodges 131 Glein v. Rise 666 668, 672 V. Lawson 100 Glen Iron Works, Re 409 Gorely v. Gorely 554 Glenn v. Cuttle 55 836 ,387 348, 349 Gorliam v. Arnold 543 V. Hebb 180 154, 478 670 V. Leggett 407 i: Wing 122 xliv TABLE OF CASES. Gospel Society v. Wheeler 39 Green v. Coos, &c. Co. ' 262 Goss V. Singleton 522 V. Creighton 705, 707 Goswiller's Case 122 V. Cross 567 Goudy V. Gillara 737 V. Darling 369 Gough V. Butt 502 716, 717 Gould V. Gould 150 V. Fricker 426 V. Johnson 25, 250 V. Fry 76 V. Lynde 514 V. Greenboro Female College 278, V. Newman 543 361, 736 V. Shirley 236 V. Humphries 22 J V. White 445, 556 V. Johnson 8, 74, 340, 419, 524 , Gouraud, In re Will of, 2 5.30, 533 GoTeruor o, Gordon 455 680 V. Stonum 413 V. Morris 280 V. Woodworth 529 V. N. C. E. R. Co. 26 Gowan v. Torster 302 V. Turner 545, 649 Gower v. Quinlan 692 V. Williams 340, 345 545, 549 Green, &c. u. S. P. E. E. Co. 85 Grafton Bank v. Doe 361, 410 Greenby v, Wilcoks 428 Graham, Ex parte 41 Greene v. Mizelle 649 V. Craig 654 Greenhalgh v. Manchester & B. R. V. Keys 227 Co. 161 V. Nelson 518 Greenleaf v. Kellogg 361 282 Greenlees v. Greenlees 609, 531 Granger v. George 14, 469 Greeno v. Munson 666 V. Granger 10, 312 Greenway v. Hart 666 Grannis v. Clark 428 478 Grant v. Ashley 167 , 179, 185 Greenwx)od v. Greenwood 611 V. Burr 529 Gregg I'. Gregg 533 V. Fowler 635 V. Sayre 641, 645 V. Grant 148, 163 Greggs V. Tesson 581 V. Lexington, &o. Ins. Co. 100 Gregory v. Com. 3,4 V. Lyon 464 V. Crab 671 V. Vaughan 63 168, 243 V. Winhorne 643 V. Thoijison 76 Grattan v. Wiggins 96,97 Grenfell v. Girdlestone 241, 500 Gratz V. Provost 531 Gretchel v. Jewett 144 Graves v. Dudley 389 Gridley v. Watson 746 V. Graves 34, 169 Griffln v. Justices 481 V. Shulman 51 V. McKenzie 89 Gray v. Berryman 745 V. Sheffield 667 878 V. Stamper 641 V. Green 87 Griffith, In re 24 V. Griffith 60 V. Park 419 V. Kernahan 166, 190 V. Eobertson 408 V. Lawridge 181, 227 i;. Schmerderman 687 V. McDowell 211 V Willing 74 V. Portland Bank 68 Griffon v. Blanc 6.S8 r. Trapnall 744, 746 Griggs V. Dodge 74 Grayson v. Taylor 211 Grigsby v. Peck 23 Great Falls Co. v. Worcester 674 Grimball v. Mastin 263 Great West Mining Co. v. Woodmans Grimes v, Hapgood 422 of Alston Mining Co. 158 V. Regland 682 Green's Case 163 V. Watkina 23 Green v. Ball 569 •Grist V. Hodges 429, 4,30 V Chelsea 682 0. Newman 167 TABLE OF CASES. xlv Griswold v. Bard 621 Hale V. Handy 76 V. Bingliain 478 V. Jewell 569 620 V. Pack 655 V. Butler 580, 649 V. Park 650 V. Hazard 160 Hales V. Stevenson 236 Groft V. Weakland 684, 686, 689, 690 Hall V. Bryan 190 Gross I'. Fowler 130 V. Bumstead 578 ti. Kiercke 394 897 Grosvenor v, Magill 119 V. Creswell 215, 396, 439 Grubb ti. Clayton 312, 313, 484 481 Grubbs v. Vicksburg, &c. R. R. Co. 406 V. Davey 666 Grube v. Wells 622, 661 V. Dean 434 Grumbles v. Grumbles 531 V. Deatly 488, 489 Gueno v. Souraastre 371 V. Denckle 11 , 141, 546, 652. Guichard v. Superveile 719 1). Deeney 629. Guier v. Pearoe 185 186, 207, 211 V. Felton 566. V. Pierce 207, 211 V. Fenton 411. Guignard v. Parr 383 V. Hall 51 Guild V. Hale 743 V. Law 634 Guillon V. Perry 304 V. Letts 3ia. Guilotell V. Mayor of New York 38, 43 V. Low 636, 637 Guinn v. Locke 669 V, Mathias 692: Gulf, &c. E. B. Co. V. Gatewood 99 478. Gulf R. R. Co. V. Owen 628 V. Minor 44 Gulick V. James 66 640 ■ GuUick V. Loder 26 V. Noyes 162- V. Turnpike Co. 717, 724 V. Powell 633, 656, 657 Gunn V. Brantley 132, 547, 552, 564 389- V. Gunn 714, 715 824 Gunther v. Pettijohn 674 V. Savill 640- Gustin V. Brattle 163 V. Stephens 643 V. Jefferson 456 V. Thayer 402' Gutlirie v. Field 561 V. Weyborn. 607 Guy V. Moffitt 651 V. Wood 331, 332, 333, 335- V. Sams 295 V. Woodman 477, 479' V. Tarns 196, 198 V. Wybourn 14, 15, l.W- Gwinn v. Whittaker 298 Hallas V. Bell 616- Gwynn v. Jones 640 Halleck v. Mixer 60 Hallesy v. Jackson 564 H. Halliday v. Cromwell 685- V. Ward 240, 241 Hacker v. Everett 594 Hallock !>. Losser 718- Hackley V. Patrick 730, 734, 735 Halo V. Schick 66S- Hagan v. Parsons 545, 549 Halsey v. Johnson 647- Haggarty v. Morgan Hagman v. Vioally Haiglit V. Avery V, Price 589, 596 10 782, 738, 739 I'. McLean V. Tate Haltzapple ». Phillibaum 32, 35 16.1, 532, 53.3 641 152, 156 Hambleton v. Glenn 408 Hail V. Spencer 740 Hambly v. Trott 447 Haines v. Thorp Hale V. Andrews 83 Hamell v. Adams 389 894 Hamer v. Kirkwood 298 V. Ard 52, 333, 835 V. Knowles 462 V. Qliddon 62S, 625, 626, 631, !'. Sidway 510 668, 674 Hamilton v. Bagges 635 V. Gladfelder 609,610 V. Hamilton , 133 1). Hale 194 V. Marsden 668 xlvi TABLE OF CASES. Hamilton v. Paine 643 Hardenbergh v. Sohoonmaker 614 V. Pritchard 529 Hardin v. Boyd 171, 549 V. Smitli 702, 703 V. Burritt 638 V. Wilson 428, 432 V. Major 131 V. Wriglit 624, 637, 651 V. Taylor 109 Hamlin v. Mebane 147 Harding v. Edgecombe 286, 303, 361 Ilammon v. Huntley 483, 486 V. Third, &c. Church 699 Hammond v. Barclay 62 . V. Tim 296 V. Hammond 88 524, 525, 527 V. Wormley 296 V. Hopkins 645, 564 Hardy v. Corliss 740 V. Myers 394 V. Harbin 711 V. Ridgely 656 Hare v. Pearson 468 V. Wallace 157 Hargis v. Sewell 198, 242 678 Hargreaves v. Michell 89, 499 Hamond v. Dod 429 Hargroves v. Cook 295 Hampton v. Deane 299 Harker v. Conrad 298 V. Erenzeller 120, 121 Harlan v. Bemie 172 Hancock v. Bliss 166, 184, 198, 205, 212, Harlaw v. Lake Superior Iron Co. 141, 214 225, 237, 268 144 V. iVanklin Ins. Co. 66 Harley v. Estes 540 V. Harper 145, 171 Harlow v. Dehon 508, 509 76 Harman v. Gardiner 673 Hand v. Lee 167 673 Handley v. Cunningham 121 Harmon v. Claiborne 226, 243 Handy v. Draper 327 Harness ti. Green 81 23 Harpending v. Shoemaker 60 Hanger v. Abbott 11 Harper v. Charlesworth 467 Hank v. Senseman 626 V. Prailey 274, 281, 282 301, 739 Hanks, Ex parte 746 V. Hammond 33 V. Phillips 688 V. Hampton 31 Hanlon v. Hannon 61 V. Pope 699 Hanna v. Cranmer 641 V. Tapley 638, 686 V. Renfro 641, 642 Harrell v. White 215 61 Harriet v. Swan ' 650 Hannan v. Engleman 714 Harriman v. Wilkins 416 171 Harrington v. Keteltas 496 Hannay v, Thompson 569 Harris v. Dennis 744 Hannefin v. Blake 627 V. Harris 33, 411 Banner v. Moulton 351, 157 V. Gray 28 Hanney v. Tohey 263 V. Grey 37 Hannon v. Hunnihan 158 507, 536 Hannura's Appeal 226, 240 V. Ligget 76 Hannum v, Westchester 65, 92, 93 V. McGovern 601 Hansard v. Harvey 66B V. Mills 61, 134, 545, 54» Hansen v. Rounsavell 297 20 Hansford v. Elliott '483, 496, 582 H. Oliver 108 Hanson v. Towle 190, 233, 266 V. Osborn 334 Hanx V. Battin 661 V. Saunders 6, 51 468, 469 Hapgood V. Southgate 10, 48.S 546 Harbaugh w. Moore 641 Harrison v. Cach€lin 685 Harbor v. Morgan 364 290 Harbould v. Kuntz 167, 185, 197, 212 1). Gibson 149 Harcourt v. White 149 V. Handley 166, 181 185, 187, 207 Hard v. Lee 481 V. Handy 187 Hardee v. Dunn 825 1). Hardy 208 Harden v. Palmer 698 134, 604 TABLE OF CASES. xlvii Harrison v. Heflin 4, 418, 531 Hawley v. Botsford 478 V. Kerrison 316 V. Cramer 148, 533 298 V. Griswold 304 V. Metz 41,44 Hawse v. Burgmire 37 Harsher v. Reid 433 Hawthorn v. Bronson 151 Hart's Appeal 7, 339, 341, 348, 523, 524 Haxtum, Re 479 Hart V. Boyd 194, 265, 566, 557 Hay V. Cramer 181, 184, 717 V. Gregg 672 V. Fisher 61,81 V. Holly 288 V. Kramer 714 V. Nash 228, 299, 443 Hayden v. Bucklin 133 V. Prendergast 196, 197, 231, 237, 264 V. Johnson 183 V. Ten Eyck 66 V. Oriental Mills 94 Harter v. Taggart 478 V. Smith 563 Hartford County Bank V. Waterman 97, Haydock v. Tracy 254 116, 414, 449 Hay don v. Williams 234, 250, 252, 253, Hartland v. Jakes 355 256, 259, 204, 266 Hartley v. Wharton 269 Hayes v. Bickerstaff 428, 429, 430 Hartman v. Sharp 175 V. Frey 548 Hartpole v. Walsh 654 V. Goode 500 Harvey v. I. & S. Co. 323 V. Goodwin 383 B. Tobey 374 w. Stewart 746 a. Tyler 623 Hayman v. Keally 136, 488, 507, 533 Harwell v. M'CuUock 185, 207 Hayne v. Hall 504, 508, 705 V. Steel 607, 722 Haynes v. Boardman 696 Hasbrouck v. Vermilyea 634 V. Jones 696 Haselden v. Whitesides 495 V. Rudd 398 Haskell v. Bailey 646, 548 V. Waite 295 Hassinger v. Solms 394 Hay's Appeal 4 Hastie v. Aiken 529 Hays V. Cage 34 Hastings v. Merriam 633 V. Stone 339 Hatch V. Dana 409 Hayward v. Gunn 506, 509, 529 V. Hatch 643 V. Kinsey 497, 498 V. Pendergast 666 V. St. Louis 94 V. Smith 658 Haywood v. Ensley 566 V. Vermont Central R. R. Co. 682 Hazlebacker v. Reeves 194, 197, 211, Hathaway v. Haskell 305 216, 254 V. Patterson 317, 357, 358 Hazleton v. Whitesides 481 Hatter v. Ash 127 Hazlett I'. Critchfield 43 HaufE V. Howard 513 Head v. Head 672 Hatiselt V. Patterson 565 V. Manners 166, 181, 185, 207, 481 Haven v. Poster 61 V. Wadham 77 V. Hathaway 300, 301, 304 Healy v. Gilman 378 Ha^fenden v. Annesley 529 Hearn v. Cuthert 299 Havens v. Bliss 537, 659 Heath v. Grinnell 282, 297, 481 Havlin v. Stevenson 25 V. Page 26 Ilavlock V. Ashbury 240 B.Wells 475, 477, 480 V. Jackson 109 V. White 640 Hawes v. Shaw] 667 V. Williams 666, 669 Hawkes v. Orton 431 Heckert's Appeal 507,517 Hawkins v. Barney 7, 33, 39 Heffernan v. Howell 28 V. Campbell 41 Heinlin v. Castro 271 V. Hawkins 575, 579, 625 Heiser v. Riehle 634, 658, 679 -— V. Hudson 625 Heiserman ;•. Burlingtor C. R.&N R. V. Robinson 6.34 Co. 605 V. Savage 11 Hellings v. Bird 620 V. Walker 473 V. Shaw 169, 174, 190. 192, 213 xlviii TABLE OP CASES. Helps V. Winterbottom 325, 375 Hidden v. Cozzens 217, 243 Hemenway v. Gates 505, 529 Higbee v. Rice 684, 672 Hemmenway v. Bradford 58 Higdon V. Stewart 185 Hemming v. Zimmerschitte 518, 537 Higgenbottom v. Peyton 513 Hemp V. Garland 361 Higginbotham v. Fishback 648 Henderson's Case 154 Higgins V. Crawford 500, 520 Henderson v. Baker 743 V. Higgins 530 V. Dodd 523 V. Scott 62, 64, 172, 545, 559 V. Eason 73 V. Shaw 497 639, 688 Higginson v. Niven 555 361, 410 Higgs V. Stimmel 427 V. Henderspn 419 Higham v. Rabett 466 486 V. Ridgway 303 V. Lewis 424, 425, 426 Hikes V. Crawford 383 V. Wadsworth • 280 Hilbery v. Hatton 469 Hendricks v. Comstock 81, 34 Hilbourn v. Fogg 667 Hendy v. March 527 Hill, Estate of 395 Henley v. Wilson 637 Hill V. Bellows 588, 591 Henlock v. Johnson 109 H. Bexley 541 Henly v. Lanier 278 V. Boyland 42, 132 Heuning v. Barnett 466 V. Browne 430 Henry v. Carson 581 V. Green 57 V. Confidence G. & S Mining V. Henderson 495 Co. 530, 545, 546, 549 V. Henry 254, 316, 353, 368 V. Jones 122 V. Hewitt 542 V. Root 198 V. Jones 155 V. Suttle 159 V. Kendall 232 V. Thorpe 41, 43, 44 ii. Knickie 41 Hentz V. Long Island R. Co 161 V. M'Donald 529 Henway v. Murray 743 V. Myers 471 Herbert v. Henrick 630 V. Perrin 218 V. Herbert 132 V. Ren. Co. Supr's 12 Hercy v. Dinwoody 136, 502 V. Robbins 296, 298 Heriot v. McCauley 390 V. Robertson 543 Herndon v. Pratt 96 1). Saunders 684 Hershay v. Clark 666 V. Simpson 63 Hertle v. McDonald 513, 564 V. Southerland 295 V. Schwartz 132, 515 V. State 478 Hester v. Coats 637, 638, 642 V. Walker 474 Hewer v. Cox 593 V. Wilson 641 Hewitt V. Eankin 542 Hillebrandt's Succession 215 Heyer v. Pruyn 170, 171, 545, 548 Hills V. Elliott 89 Heyling v. Hastings 173, 484 Hillsboro v. Londonderry 56 Heywood v. Marsh 704 Hilton V. Bender 613 V. Perrin 360, 361 V. Duncan 411 Hibernia Bank v. O'Grady 358, 369, 371 Hinch V. Weatherford 40 Hibler v. Johnson 714 Hinckly v. Fowler 87 Hickling v. Hardey 359 Hinds 0. Whiting 23, 601 Hickman v. Thorny 466 Hindmarsh, Re 54 V. Walker 483, 484 Hines v. McKinney 468 Hickok V. Hickok 837, 348 V. Potts 25 Hickox V. Elliott, 529 V. Robinson 642 Hicks V. Hicks 722 Hinkley v. Crouse 620 V. Lusk 288 V. Walters 722 V. Sallitt 471 Hinman v. Cranmer 641 V. Thomas 238 Hinsdale v. Lamed 447, 457 TABLE OP CASES. xlix Hinsdale v. Orange Bank 57 Hollis V. Bell 616 Hinson v. Partee 668 V. Hayes 514 Hinton v. Pritchard 529 V. Palmer 272, 292, 445 V. Townes 33 Hollingshead's Case 23, 136, 240, 497 Hintz V. Thomas 671 Hollingshead o. Naumon 634 Hipwell V. Knight 130 V. Woodward 405 Hirsch v. Adams 104 Hollingsworth u. Frye 150 Hirst V. Brooks 316 ,353 HoUister v. Young 629 Hitchcock i;. Harrington 26 ,542 HoUoway v. Galliae 667 V. I/ukens 56 Hollywood V. Reed 715 Hitchin v. Campbell 447 Holman v. Criswell 537 Hitchings v. Morrison 662 Holmes v. Durrell 281 Hitt V. Shorer 397 V. Grant 568 Hoag V. Hoag 671 V. Kerrison 317, .318 322, 356, 372 Hoare v. Harstopp 63 V. King 311 Hobart v. Connecticut Turnpike Co. 24, V. Mackrell 231, 268 313, 490, 491, 494 V. Pratt 295 Hobbs V. BuUard 470 V. Seller 429 Hoch's Appeal 41 V. Smith 85, 122 Hockenburgh v. Snyder 666, 679 V. Trout 25 Hodgden v. Gutting 141 17. Weed 395 Hodgdon v. Chase 374 V. West 354 V. Harris 85 - — W.Wilson 457, 458, 459, 460, 543 0. White 473, 474, 477, 479 481 Holt V. Gage 262 Hodge V. Manley 279, 714 716 Holton V. Whitney 663, 695, 696 Hodges u. Dunden 12,23 Holtzapple v. Phillibaum 641 V. Eddy 657 Homan v. Lowell 122 V. Tennessee, &c. [ns. Co. 569 Home V. Semple 76 Hodgson V. Bibby 502 Home Ins. Co. v. Meyer 106 V. East India Co. 431 Homer v. Pish 139, 143, 702 Hodle V. Healey 192 671 Hodsden v. Harridge 237 485 Homes ii. Smith 121 Hodson V. Harridge 84 ,85 483 Honey v. Honey 60 Hoester v. Sammelmann 157 Hood V. Hood 687, 693, 697 Hoey V. Furman 684 V. Mathias 667 Hoffi V. Richardson 196 Hoode V. Healy 566 Hoffman v. Brechtel . 403 Hooker v. Hooker 42 V. Harrington 426 546,552, 555, 564 Hooper v. Bryant 478 Hogan V. Bear 181 V. Garner 641 V. Kurtz 12 ,23 601 V. Holmes 513 Hogg V. Ashman 12 V. Stevens 190 227, 301, 443 V. Gill 468 V. Wilson 542 Hoggett V. Emerson 33 Hope V. Johnson 38,39 Holberg v. Jaffrey 262 Hope Ins. Co. v. Weed 365 Holcombe v. Anstell 685 Hope Mutual Ins. Co. i ). Perkins 366 V. Tracy 89,40 Hope Mutual Life Ins. Co. i>. Weed 366 Holden v. Collins 642 V. Taylor 367 V. Crafts 339, 340, 350, 524 Hopkins v. Banks 7.30 V. James 44 ,45 121 V. Barney 146 Hole V. Rittenhouse 630 658 V. Calloway 609, 610. 697 Holladay v. Littlepage 373 V. Chambers 131 Holland v. Chaffin 271 V. Cockerell 64, 559 V. Clark 316 V. Hopkins 347 849, 523, 524 V. Dickerson 38 V. Jones 41 HoUiday v. Arthur 568 V. Robinson 629 HoUis's Case 89, 499 1 Hopper V. Hopper 481 1 TABLE OP CASES. Hopper V. Jones 569 Hoppes V. Cheek 430 Horbaoh v. Miller 38, 39 Horlbeck v. Hunt 216 Home V. Planters' Bank 298 Horner v. Starkey 184, 211 1). Stilwell 466 Horsefleld v. Cast 468 Horton v. Clark 2 V. Ronalds 85 ilorwood V. Smith 63 Hoskins v. Hoskins 506 Hostetter v. Hallinger 262, 511 Hotman v. May 109 Hough V. Bailey 546, 548, 556, 657, 567 V. Richardson 150 Houghton V. Mann 376 Hounsell v. Gibbs 336 Houseal v. Gibbs 508, 522, 531 Houser v. Irvine 733 Houston V. Boyle 37 Hovenden v. Annesley 133, 135, 136, 138, 511, 515, 531, 703, 706 Hovey v. Holcomb 513, 569 Howard v. Aiken 529 V. Doolittle 430 V. Hildreth 445, 556, 557 V, Howard 621 V. McCall 296 V. Reedy 661 V. Rudy 623 Howcutt V. Bonser 222, 248 Howe V. Hathaway 292 V. Russell 568 V. Saunders 275, 310, 377 !'. Thompson 304, 305 Howell V. Adams 382 V. Ashmore 671 V. Hair 470, 604 V. Howell 40, 43, 45 V. Leavitt 576 V. Young 14, 452, 456 Howes V. Austin 57 Rowland v. Cuykendall 325, 365, 366 V. Edmonds 317, 318, 365, 366, 407 V. Newark Cemetery Assoc. 683 295, 296 V. Rench V. Shurtliff Hoyt V. Dillon V. Eeed V. Wilkinson Hubbard v. Austin V. Kiddo V, Marsh V. Wood Hubbell V. Cowdrey 426, 546, 551, 555 622 372 59 634 635 478 638 30, 31, 51, 81 Hubbell V. Sibley Huber v. Steiner Hudnal v. Wilder Hudson V. Carey V. Hudson V. Hulbert V. I shell V. Putney V. Wheeler Huegueuin v. Beasley Hugh V. Jones Hughes V. Blackwell V. ClarksTille V. Edwards V. Farrar V. Hughes V. Litrell V. Paramore V. Wheeler V. Winn Hulbert v. Clark Hulett V. Lorillard Hull f. Deatly V. Gittings V. Vandergrift V. Vermont, &c. E. R. Co. V. Wilson 140, 141, 551 36, 492 523 189, 225 10, 601, 602 480 569 618 26, 667 704 702 445, 557 672 426, 646, 555, 664 23 426, 426, 507, 522 311 267 57 499 169 394 10, 601 627 324, 325, 689 599 658 Hull, Mayor of, o. Horner 80, 110, 114, 690 Huls V. Buntin 651 Hultslander v. Thompson 743 Humbert v. Trinity Church 133, 134, e07, 621, 645, 702 Hume V. Beale Hurape V. Schaffer Humphrey v. Carpenter V. Clearfield Co. V. Hard V. Persons Humphreys v. Jones V. Mattoon Humphries v. Huffman Hunnioutt v. Peyton Hunt V. Allen V. Bourne V. Brigham V. Ellison V. Holden V. Holly 1). Spaulding V. Taylor V. Wickliffe Hunter v. Baxter V. Chrisman V. Hunter V. Kettredge 160, 509 741 145 511 552 25 264 606, 713 625 666, 667 429 640 305 147 130 276 724, 744 368 135, 137, 142 476 623, 658, 663 711 179, 194, 219 TABLE OF CASES. li Hunter w. Mckolds 502 Irvine v. Wood 456 V. Parsons 649 Irving V. Veitch 249, 254, 264, 302, 325, V. Robertson 281 374 V. Spotsw ood 504 Irwin V. Paulett 295 V. Waldron 76 Isaac V. Clarke 668 Huntington v. Babbitt 482 V. Swift 746 V. Ballou 738 Ivery v. Owens 61, 447 V. Chesmore 240 V. Mather 561 J. Huntley v. Sanderson 378 Hup tress v. Patton 402 Jacks V. Moore 26 Hurd V. Coleman 553 Jackson v. Andrews 646 Hurley v. Estes 549 V. Bailey 295 Hursh V. North 384 V. Bard 654 Hurst V. Parker 176 177 , 181, 449 V. Birner 629 651, 652 Hussey v. Burgwyn 294 303, 719 V. Brink 621, 672 198 242, 262 V. Brooks 740, 743 Hutchins v. Gilman 339, 387 709, 710 Hutchinson v. Chase 674 V. Burke 296 V. Hutchinson 506 507, 523 V. Cairns 641 V. Pratt 714 V. Camp 623, 636 644, 654 Hutton V. Brown 357 693 Hyde v. Dilloway 548, 552 V. Delancey 437, 552 V. Johnson 242, 268 V. Ellis 629 Hydeville Co. v. Eagle R. R. & Slate V. Eairbank 217, 729 Co. 56, 77 V. Frost 621 637, 653 Hyman v. Bayne 38 V. Hardenburgh 625 V. Gray 340, 524 V. Harder 619 Hysinger v. Baltzell 591 V. Harper 666 641 I. V. Hinman V. Hitt 666 488 Idding V. Cairns 692 V. Hotchkiss 648 Her V. Routh 629 623 Ilett V. Collins 28 V. Hudson 437, 635 lilies V. Fitzgerald 439 V. Ingraham 635, 652 Illsley V. Jewett 172, 190, 272, 301, 305 V. Jawdin 629 Imperial Gas Light Co. v London 15, 24, 640, 648, 654 Gas Co. 702 V. Joy 629, 690 Inches v. Leonard 426, 555, 556 V. Leek 666 Indianapolis, &c. R. R. Co. i;. Ross 632 V. Lodge 540, 569 IngersoU v. Kirby 122 V. Lunn 641 V. Lewis 690 V. Matsdorf 513 Ingle V. Richards 481, 498 V. Moore 696 Inglis V. Haigh 6, 50, 51 V. Nason 82 V. Hay 72 V. Newton 629, 643 Ingrahara v. Baldwin 425, 666 V. Oltz 634 V. Regan 584 V. Parker 651 V. Shepard 715 V. People 216 V. Sherard 714, 717 V. Pierce 445 Ingram v. Ashmore 76 V. Porter 623, 624 634, 635 V. Little 666 V. Pratt 4.37, 555 Insurance Co. v. La Croix 99 V. Ramsbotham 665 International, &e. R. R. Co. u. Pape 32.3 | V. Richards 660 Irby V. McCrea 89, 500 u. Robins 580 Irvine v. Adler 664 V. Rogers 655 lii TABLE OF CASES. Jackson v. Rowland 671 V. Sackett 64, 169, 170, 424 «. Sehoonmaker 626, 639, 641, 684 V. Sellick 640 V. Sharp 622, 629, 651 V. Slater 552 V. Smith 621, 634 V. Stacey ,466 ■ K.Stephens 629 V. Stiles 666 V. Thomas 623, 624, 629, 652, 653 V. Van Valkenburgh 122 V. Varick 25 V. Vermilyea 634, 657 V. Waters 623, 629, 635, 652 V. Wheat 15, 699, 603, 629, 644 V. Whedon 666, 669 V. Willard 542 V. Wood 426, 555, 690 V. Woodruff 617, 686, 643, 659, 660 Jacobs V. Graham 122 V. Phillips 517 V. Scales 233 Jaoctuet V. Jacquet 502, 521 JafErey v. Bear 132 James v. Buzzard 57 V. Fulorod 518 Jameson v. Jameson 315, 356 Jamison v. Perry 544 Janio V. Patterson 634 Jarvis v. Albro 655, 557 V. Jarvis 41 V. Pike 27 V. Woodruff 546, 548 Jay V. Thompson 41 Jayne v. Mickey 389 JefEeries v. Sheppard 343 Jeffersonville, &c. R. R. Co. v. Oyler 652 Jeffryes v. Evans 432 Jenckes v. Cook 668 Jencks v. Alexander 299 V. Quidnick Co. 132 Jenkins v. Boyle 180, 207 V. Dawes 377 V. Pye 151 u. Thompson 76 Jenner v. Tracey 547 Jennings v. Browder 478 !). Norton 440 Jessup V. 111. &e. E. R. Co. 160 Jett V. Hempstead 387, 340, 348 Jewell's Succession 219 Jewell V. Schroeppel 76 Jewett V. Greene 741 V. Partridge 468 V. Petit 272, 292 Jex V. City of New York 27 Jilson V. Gilbert 332 Johns u. Fenton 311,699 V. Lantz 194, 208, 211 Johnson v. Albany & Susquehanna R. R. Co. 169, 171 V. Bank of North America 378 V. Beardslee 481, 729, 733 V. Bonnetheau 219 V. Diversey 146 V. Dougherty 514 V. Evans *179 V. Farmers' Bank 54, 386 V. Farwell 740, 743 V. Gorham 621 — — V. Green 96 V. Humboldt Ins. Co 100, 107 V. Huston 569 V. Irwin 623, 684 134, 148, 198, 295, 567 V. Liversedge 640 V. Lloyd 674 • 665 635 V. McMillan 634, 636 V. Mounsey 546 V. Overman 521 V. Railroad Co. 38 V. Robbins 296 V. Rutherford 411 669 419, 507, 533 V. Stark 57 V. Stockton 425 V. Thoroughgood 466 V. Tuolumne 673 -^ — V. White 469f ; V. Wren 10 312, 313, 489 Johnston v. Gill 11 V. Houston 542, 569 V. Humphreys 56, 340, 484, 510 V. Nash 697 Johnstone v. Mining Cc . 1.32 Joiner v. Borders 686 Joliffe V. Pitt 14, 489 Joly V. Arbuthnot 541 Jones I). Ashford 408 V. Brodie 484 V. Buzzard 60 V. Conway 139, 143, 324, 325, 702 V. Eisler 317, 371 V. Goodwin 522 V. Harraden 69 V. Hays 30,33 V. Hoar 61, 447 TABLE OF OASES. liii Jones V. Hook V. Hughe? V. Jones 83, 169 267 31, 34, 36, 190, 198, 292, 470, 492, 669 V. Law 89 V. Lemon 23,24 V. Lewis 332, 383 V. Lightfoot 326, 410 V. Moore 187, 211, 219 482, 484. 487 V. Nelson 11 353 V. Person 504, 529 V. Pharr 478 V. Planters' Bank 119 85 V. Porter 629, 630 V. Potter 643 V. Eeeves 579 V. Ridley 630 V. Shattuck 623 «. Smith 63,67 V. Strickland 713 V. Trimble 410 V. Turberville 500, 502, 520, 608 673, 674 V. Williams 295, 296, 544 V. Woods 328 Jordan v. Adams 395 226, 244 V. Robinson 86 V. Thornton 24, 469, 603 V. T wells 431 Jordon v. Fenno 569 Joseph V. Baker 339 Joslyn ». Smith 288, 731 Josselyn v. Stone 109 Journey v. Gibson 41 Joy V. Adams 61, 172 Judah V. Brandon 134 V. Dyatt 340, 350, 524 Judd V. Fulton 120 V. Sampson 718 Judge V. Barnes 649 Judge of Probate v. Brooks 135 Julien V. Hoosier Drill Co. 162 Junior Steam Engine Co. v. Douglass 374 Justice, &o. V. Orr 383 K. Ealheim v. Harrison Kallenbach v. Dickinson Kampshall v. Goodman 566 727, 733, 734 180 Kane v. Bloodgood 84, 134, 146, 187, 504, 507, 508, 511, 612, 615, 519, 530, 531, 583 V. Cook 524 Kane County v. Herringtou 134 Kansas R. K. Co. o. Mihlman 468 Karver v. James 485 Kathau v. Rockwell 673 Keaton v. Greenwood 531 V. McGwier 132, 146, 530 Keecli a. Hall 641 Keefer v. Zimmerman 439 Keen v. Deardon 506, 617 Keene v. Collier 389 Keener o. KruU Keeton v. Keeton Kei! V. Healey Keim v. Home Ins. Co. Keiser's Appeal Keith V. Estell Kellar v. Sinton Keller v. Dillon V. Jackson Kellog V. Wilson Kellogg V. Wood Kellum V. Smith Kelly V. Foster V. Gilman V. Hooper V. Mills V. Sanborn Kemp ». Westbrook Kempe v. Bader Kendall v. Slaughter V. United States Kendrick, Re Kennebeck Purchase v. Dabore V. Labourie V. Springer Kennebunk v. Smith Kennedy's Appeal Kennedy v. Carpenter V. Georgia State Bank V. Knight V. Laconley V. Reynolds Kennett v. Plummer Kenney v. Lee Kenosha v. Lamson 185 24, 603 23, 601 99. 103 23 • 81 546 680 714 151 437, 547 568 96 130 478 513 185, 226, 726, 733 66,68 689 600 24, 25, 605, 607 198, 242, 476 620 641 ' 620, 631 118 473 372, 373 532 546 109 689 542, 543 740 362 Kensington Bank v. Patton 181, 197, 226 Kent V. Dunham 89, 600 V. Welch 438 Kentucky Bank v. Wister 53, 389 Keplinger v. Griffith 212 Kerby v. Jacobs 147 Kerndt v. Porterfield 566 Kerns v. Schoomaker 471 liv TABLE OK CASES. Kerr v. Shaw 428, 430 King V. Tirrell 42 Kerrison v. Williams 64 V. Watertown F. Ins. Co. 103 Kestler v. Hereth 9 Kingdom v. Nottle 433, 434 Kethler v. Foster 356 Kingham v. Robins 294 Key V. McCleary ' 569 Kingman v. Hotaling 57 Keyser v. Evans 672 V. Kingman 426, 500 Kidd V. Temple 542 Kingsbury v. Butler 353 Kiddall v. Trimble 700 Kingsmill v. Bull 466 Kidder v. Rexford 73 Kingston Bank v. Ettinge 59 Kilburn v. Lackman 40 Kinna v. Smith 426 Kilgour V. Finlyson 527 Kinne v. McClure 336 Kille V. Ege 651, 692 V. Schwartz 178 Killian v. Watt 580 Kinney v. Doe 671 Killip V. Putnam Ins. Co. 107 Kinsell v. Daggett 629 Kilpatrick v. Sinseros 636 Kinsey v. Heyward 485 Kimball v. Brown 714, 719 Kinsloe v. Baugh 304 V. Cmmingham 58,76 Kinsman v. Cambridge 39, 41, 44 V. Fuller 369 V. Rouse 24 V. Hamilton Fire Ins. Co. 104 V. Wright 376 V. Ives 151, 518 Kirby ». Hanksaker 431 V. Ladd 629 — V. Lake Shore & R. R. Co. 704, 706, V. Lamson 130 707 V. Morton 513 V. Mills 241 V. Whitney 81 Kirk V. Hartman 76 Kimble v. Cummins 398 V. Smith 643, 648, 651, 652 Kimborough ;;. Smith 569 Kirkland v. Krebs 11 Kimbro v. Fulton Bank 37 Kirkman v. Hamilton 76 Kimm v. Osgood 122 V. Phillips 470 Kimmell v. Schwartz 172, 207 25 Kinoaid v. Archibald 269 Kirkpatrick v. Davidson 513 V. Dwinelle 406 Kirma v. Smith 155 — - V. Ind. Nat. Gas Co. 161 Kisler v. Sanders 246 Kinchelae v. Treadwell 623 Kistler v. Hereth 23 King V. Andrews 296 Kite V. Brown 658 V. Baxter 27 Kittredge v. Locks & Canah 673 V. Beeston 77 Kline v. Guthart 242 V. Coulter 723 V. McGuerkin 542 502 Kluge V. Lachenor 664 V. Eddington 543 . Knapp V. Clark 55 V. Hannah 373 V. Hannaford 58,88 V. Jones 434, 436 V. Marlboro 430 V. King 724 Kneeder v. Norton 706 V. Lane 33 Knepper v. Kuntz 432, 438 V. MacKellar 312, 321 Knight V. Brawner 89, 132, 499 V. Merritt 635 V. Clements 307, 733, 734 V. Milsam 63 V. Macomber 82 V. Morford 154 V. Taylor 160 V. Morrall 110, 115 Knipe v. Knipe 714 V. Mosely 478 Knott 17. Farren 206 V. Murray 666, 669 Knotts V. Butler 396 V. Rice 413 Knowlton v. Walker 546 551, 552, 564 V. Riddle 220, 246 u.Watertown 741 V. Smith 634, 693, 697 Knox V. Cleveland 83, 41, 48 V. State Bank 743 V. Gye 525, 526 V. St. Michael's 543 V. Hook 648 V. Studebaker 402 V, Jenks 689 TABLE OF OASES. Iv Knox County v. Aspinwall 363 Lanoey v. Maine Central E. B. Co. 714, V. Manhattan El. li. B. Co. 161 720 Koch V. Melhorn 402 Lander v. Eounseville 649 Kohlheim v. Harrison 552 Landes v. Both 198, 263 Koons V. Steele 691, 692 V. Saxton 357 Korn V. Brown 87 Landis v. Home Mat. Ins. Co. 104 Kortz V, Carpenter 430 Lane v. Bank of the Metropolis 594 Koshkonong v. Burton 363 V. Dickerson 569 Krause v. Dorranoe 836, 339 V. Doty 400 Krehl v. Burrell 154, 157 V. Ewing 513 Kreuger v. Kreuger 210 V. Gould 617 Kriss V. Kriss 4 V. Kennedy 118, 683 Krone «. Krone 38 ». Levillian 402 Krumph v. Hatz 402 V. Nelson 38 Kruse v. Wilson 635, 696 V. Bichardson 266 Kulp's Appeal 311 Lang V. Phillips 122 Kutz's Appeal 604 507. 581 V. Steiger 513 Kutz V. Fleischer 714, 715 Langdon v. Bowen 296 Kyger v. Ryley 304, 549 V. Buel 561, 562 Kyle V. Tubbs 634 V. Castleton 333 !). Wills 241 V. Potter V. Boane 655, 656 721 L. Lange v. Carruthers Langford v. Selmes 284, 262 664 Labeaume v. Sweeney 395 Langham v. Baker 479 Lackey v. Lackey 525 Langley v. Fisher 705 Lacon v. Briggs 167 Langworthy v. Myers 676 V. Davenport 73 Lanning v. Levering 428, 429 !). Hooper 130 Languet v. Seawen 555 Laduc V. Seymour 76 Lansdale v. Smith 151, 160, 161 , 509, 531 La Farge v. Jayne 232, 315 Lansdell v. Gomer 84 Lafferty v. Turnley 89 499, 508 Lansing v. Starr 134, 187 La Frombois v. Jackson 635, 637, 641, Laphara v. Briggs 377 643 644, 649 Lapsley v. Brashear 37 Lagow V. Neilson 745 Larason v. Lambert 285, 353 Lainson v. Tremere 665 Lark v. Cheatham 715, 716 Laird u. Laird 27 Larman v. Hoey 673 Lake v. Thomas 552, 553 Lash V. Von Nida 4 Lakin v. Sierra Buttes Gold Mine Co. Lasser v. Davis 578 529 Lathrop v. Snellbaker 456 Laller v. Crof 5.30 La Tour v. Barclay 192 Lamar v. James 547, 552 Latourette v. Cook 81 Lamb v. Clark 61, 447 Laurence v. Hopkins 186, 207, 208, 211, V. Foss 643 224 Lambert v. Taylor 110, 116 Lauzer v. De Meyer 89 Lamine t>. Dorrell 447 Law V. Allen 548 Laming v. Laming 428 V. Patterson 672 Lammer v. Stoddard 530 Lawley v. Hooper 554 Lampson v. Fisher 377 Lawly V. Lawly 510 Lamson v. Schutt 477, 479, 480 Lawrence v. Bassett 31 Lanason v. Lambert 316 V. Bull 171 Lancashire v. Glover 431 V. Carter 58 V. Mason 670, 671 V. Harrington 275 Lancaster v. Brenthall 118 V. Miller 671 Lancaster Co. Bank v. Smith 390 V. Noyes 702 Lance v. Parker 190, 327 V. Bokes 149, 152 Ivi TABLE OF CASES. Lawrence v. Trustees 146 Lester v. Redmond 86 V. Worrell 202, 217 Lethbridge u. Chapman 14, 485 Lawrence University v Smith 341, 348 Leuthiellier v, Tracy 505, 506 Lawson v. Blodgett 529 Levasser v. Washburn 109 V. McCartney 198, 262 Lever v. Lever 340, 524 Lay V. Mechanics' Bank 480 Levering v. Rittenhouse 722 Layton v. State 576, 604 Levettenham v. Leary ^ 626 Lazarus v. McGuirk 709 Levy V. Boas 33 Lea V. Polk Co. Copper Co. 641 , 642, 695 u. Cadet 525, 72£ , 731, 733, 737 Leach v. Asher ■281 V. Stewart 11,12 V. Leach 60 Levystein v. Whitman 295 Leakey v. Gunter 513 Lewes v. Thomas 705 Leaper v. Tatton 168, 192, 217 , 250, 264 Lewis V. Alexander 25 Leather Manuf. Nat. Bk. V. Mer- V. Bacon 189 chants' Nat. Bk. 379 V. Baird 150 Leavenworth Comrs. v . Higgin V. Broad well 312 botham 290 V. Brooks 155 Lechmere v. Heteher 195, 202 269, 294 V. Castleman 520 Lee V. Brown 502 V. Buncombe 602 V. Cassin 353 V. Glenn 408 V. Forman 395 V. Great Western Ry. Co. 108, 109 313, 493 V. Hawkins 171 , 511, 512, 549 V. Horton • 328 V. Marshall 132, 134, 136, V. Linthicum 194 137, 142, V. Norris 110 V. Morland 454 V. Polk 179 185, 215 V. Robards 569 V. Wilmot 206, 237 V. Rumney 474, 481 V. Wyse 201 : V. Webb 44,45 Leed v. Halstead 614 V. Welch 710 Leef V. Goodwin 296 Lexington v. Butler 362 Leeming v. Skirrow 665 V. Lindsay 504, 505 Lefavour v. Homan 674 V. Ohio R. R. Co. 533 LeflSngwell v. Warren 607 Lexington, &c. R. R. Co. v. Bridges 507 u. White 130 Ley V. Potter 566, 690 Legarden v. Carpenter 687 Libbett v. Maultsby 42 Legare v. Fraser 351 Libby v. Robinson 198, 242 Le .Gendre v. Byrnes 151 Lichel V. Carillo 557. Leggett V. Coffield 133 Lichty V. Hugus 52, 333, 335 Leigh V. Linthicum 211, 261 Lickbarrow v. Mason 62 61 Life Association v. Cook 540 Leiman, Re 515 Lillie V. Hoyt 341, 344 Leman v. Newham 555 Limerick v. Voorhis 547 Lenhart v. Ueam 581 Lincoln v. Battelle 36 Lenoir v. South 634 V. Newhall 377 Lent V. Shear 548, 557 V. Purcell 330 Leonard v. Hughlett 289 Lincoln Co. v. Lunning 363 V. Pitney 607, 702 Lindley v. Sharp 569 V. Putney 416 Lindsay v. Hyatt 139, 511 V. TJ. S. 240 V. Jameson 180 Le Roux V. Brown 35 Lindsey v. Miller 109, 115 Le Roy v. CrowningsMeld 29, 30, 32 Lingan v. Henderson 134, 549, 559 Lesley v. Nones 425, 426 Link V. Doerfer 623, 624 Lessem v. Neal 413 Linley v. Bonsor 259 Lester v. Garland 120, 124 Linsell v. Bonsor 274, 285 V. Jenkins 743 Litchfield v. Ready 539, 639 -J. Pickford 534 Litter v. Smiley 385 TABLE OF CASES. Ivii Little V. Bland 356 V. Blunt 120, 177, 249, 316, 320, 322, 353, 591, 720 V. Downing 578, 678 V. Edwards 240 V. Harvey 746 V. Morgan 87 V. Smiley 830, 385 Littlefleld v. Littlefield 281 Littlejohn v. Gordon 558 Littler v. Smiley 332 Littleton v. Patterson 699 Litty V. Commissioners, &o. 389 Lively v. Ball 667 Livermore v. Johnson 712 w. Rand 295, 714 Livingston v. Cochran 699 V. Pendergast 641, 642, 650, 651 V. Peru Iron Co. 646, 656 V Salisbury Ore Bed 150 V. Story 707 Llewellyn v. WilUams 125, 126 Lloyd V. Currin 508 V. Maund 192, 199, 200, 202, 205, 217 V. Tomkles ' 429, 430 L. 0. A. & N. Y. R. R. Co. v. Mason 407 Locke V. Armstrong 159 y. Caldwell 146,549 1>. Hardeman 698 V. Palmer 478 Lockey v. Lockey 73, 136, 510 Lockliart v. Eaves 195, 196 V. Yeiser 39 Lockwood V. Ewer 68 V. Lockwood • 548 V. Thorn 721 V. Walker 664 Loewer v. Haug 280 Loftin V. Aldridge 226 Logan V. Mason 295 Logansport v. Uhl 161 Lokerson v. Stillwell 569 Lomax v. Pendleton 423 Lombard v. Pease 226 London v. Goree 55 V. Lyman 690 Long V. Greville ' 191, 294 V. Miller 280 V. White 133 V. Young 680, 690 Longfellow v. Longfellow 667, 672 Longhurst v. Star Ins. Co. 101 Longworth v. Hunt 704 V. Taylor 150, 537, 546 Lonsdale v. Brown 180, 249 V. Cox 394 Loomis V. Decker 184, 212 244 Lord V. Bigelow 61 V. Harvey 167, 195, 202 V. Morris 96 545 V. Shaler 187, 190, 213, 215, 217, 233, 249 343 Lord Cromwell's Case 68 Lord Selsey v. Rhodes 162 Lorent v. South Carolina Ins. Cc . 122 Loring v. Boston 39 V. Gurney 854 V. Hulling 130 V. Palmer 509 V. Whittemore 77 Lot V. Thomas 433 Lott V. De Graffenreid 704 Louis V. Gorman 626 Louisville Bank v. Gray 323 Lounsbury v. Snyder 429 Love V. Dennis 670 V. Edmoston 665 671 V. Hackett 288 V. Hough 234 V. Watkins 535 Loveland v. Davidson 30 Lovell V. Bellows 452 Lovett, Ee 496 V. Church 541 Low V. Allen 546 Lowber v. Smith 717 Lowe V. Carpenter 468 511 Lowery v. Gear 298 Loweth V. Tothergill 173 Lowndes v. Anderson 63 V. Pickney 395 Lowrey v. Lawrence 740 V. Robinson 261 ,262 Lowry v. Dubois 186 207 ,212 Lowther v. Chappell 309 731 ,733 Lucas V. Brooks 667 530 V. Dennison 566 V. Jones 443 V. Thorington 238 V. Tunstall 40 Luce V, Carley 650 Lucy V. Hopkins 159 Ludwig V. Stewart 38, 41, 42 Lun V. McLoon 404 Luna V. Edmiston 231 ,233 Lund V. Seaman's Savings Bank 389 Lunn V. Johnson 151, 164 Lunsford v. Alexander 664 V. Turner 671 Lunt V. Adams 869 Iviii TABLE OP CASES. Lush V. Edgerton 299 Luther v. Winnissimmet Co. 465 Lyford v. Thurston 513 Lyle V. Murray 337, 348, 524 Lyme First Congregational Soc. c. Miller 225 Lynan u. Walker 10 Lynch v. Cox 471, 513, 580 V. Jennings 390 Lynde v. WiUiams 636, 637, 677 McComb, Re 503 McCombe v. Davies 63, 469 McConnell v. Bowdry 666 V. Kibbe 457, 458, 459, 460 V. McConneU 638 V. Merrill 739 McCoon V. Galbraith 54, 387, 338, 348, 525 McCowin V. Cubbison 525 McCoy V. Nichols 580, 601 McCracken Co. v. Mer. Trust Co. 41 Lyon V. McDonald 566 McCrancy v. Ransom 664 V. Marclay 167 211, 504 McCranie v. Murrell 236 V. Odell 426 McCrea v. Purmort 133 134 135 511 V. Park 161 McCuUoch V. Norris 27 V. State Bank 285,300 McCuUough V. Dames 474 Lysle V. Williams 121 V. Judd — : — V. McCuUough 307 719 60 M. V. Speed McCutchen v. Dougherty 10 11 Maans v. Henderson 63 McDaniel v. Barnes 296 Maber v. Maber 302 1 McArthur v. Carver 470 McDevitt !). SuUiyan 671 V. Goddin 31 McDoal V. Tomans 403 V. Veitchen 658 V. Underbill 236 McBane v. Patrick 467 McDonald v. Gray 210, 227 McBride v. Gay 226 V. Hovey 16 M'Caffrey v. Ksher 633 V. Johns 599, 601 602 McCall V. Cooper 634,679 V. May 507 522 V. Coover 679 V. McDonald 136 240 V. Neely ■ 634, 639 ,644,649 V. McGuire 581 603 McCammon v. Pettit 681 V. Sims 425, 507 529 McCann v. Marshall 568 McDonnell v. Branch Bank 314 McCargo u. Crutcher 85 V. Montgomery Bank 348 McCamy v. Higdon 635, 637, 641 McDoual V. Magruder 395 McCarter v. Camel 89 135, 500 McDougal V. Calef 402 McCarthy v. Gordon 426 V. State 326 V. White 8,9 McDougald v. Dawson 478 McCarty v. Faucher 631 McDowell V. Goldsmith 226 508 510 V. Leggett 428, 432 V. Heath 134 V. McCarty 531 V. Potter 337, 340 581 McCausland v. Ralston 297 McElmoyle v. Cohen 30 546 McClane v. Shepperd 509, 530 McElwig 0. James 723 McClellan v. Croften 714 McEvoy V. Lloyd 634 641 642, 681 McFarland's Estate 473 McClelland v. West 185, 211 215, 219 McFarland v. Lewis 298 McClinton v. Pittsburgh, &c. E. R. V. Peabody Ins. Co. 100 Co. 55, 92, 93 V. Stone 602 McClung V. Capehart 527 McFarlane v. Kerr 614 McCluny v. Ross 629 McGary v. Hastings 429 V. Silliman 7, 8, 30 McGee u. Morgan 651 McClure o. Colyear 324 McGehee v. Blackwell 26 V. McClure 723 M'Gehee v. Greer 288 304 309 McClurg I). Fryer 403, 742 McGinnis v. Erie Co. 94 1). Howard 282 V. Porter 692 693 MoCoUister u. Willey 27 M'Glensey v, Fleming 232 TABLE OF CASES. lix McGowen v. Sennett 123 McMuUen v. Rafferty 240, 312, 353 McGraw v. Walker 122 McMuUin v. Erwin 639 McGreer «. Forsyth 240 McMurray v. McMurray 156, 161 McGregor v. VVaite 467 V. Rawson • 73 MuGuesney u. Heiater 426 McMurrey v. Hopper 478 McGuire v. Linneus 610 ,629 V. Noyes 403 V. Kamsay 513 ,528 McNair v. Funt 629 V. Shelby 643 V. Eennon 340, 349 Mo Henry v. Wells 478 V. Lot 547, 549, 555 M'lntire v. Carson 495 V. Ragaland 141, 624 Mclntire v. Morris 486 McNamara v. Minn. Cnt. Rwy. Co. 23 V. Oliver 726, 731 ,737 V. Seaton 624, 639, 664 Mtlntosh V. Haydon 353 McNamee v. Tenney 244 Mclntyre v. Cross 296 V. United States 115 Mclver v. Moore 26 M'Naughton v. Norris 714 V. Rogan 607 ,643 MoNutt V. Bland 112 McKee v. Hamilton 51 McPherson v. Seguine 673 V. Stroup 295 McPhetres v. Halley 478 McKeeiian v. Commonwealth 109 McQueen v. Babcock 8,584 McKelvey's Appeal 27 V. Ques 649 McKenney v. McKenney 40 McQuesney v. Heister 84 McKenzie «. Durant 369 McRae v. Leary 194 V. Hill 489 V. Williams 634 M'lCenzie w.Powis 133 McTeer v. Ferguson 486 McKinley, Re 629 McWhorter v. Johnson 481 McKinney v. Kenny 661 663 Mc William's Estate 249 V. SnyJer 242 Mc Wills V. Brown 469 V. Springer 41, 44, 45 Macarty v. Barrow 359, 360 McKircher v. Hawley 643 Maccabbin v. Cromwell 613 McKizzack v. Smith 479 Macfadden v. Olivant 471 McKnight v. Taylor 140, 143, 149, 160, Mack V. Witzler 642 161 509 Mackall v. Casilear 151, 158 MoKown V. Whittemore 702 709 Macklin v. Macklin 198 McLain v. Terrell 141 Madden v. Kempster 62 McLane v. Moore 579 Maddock v. Bond 646 McLaren «. McMartin 276 ,282,288,482 Maddox v. Allen 96,97 282 Madever, Re 156 McLaughlin v. Kain 426 Madison Ins. Co. v. Fellows 106 y. Maiind 385 Madox V. Humphries 210 McLaurin v. Wright 569 Magae v. Chambersburgh 92 McLean v. Fleming 162 Magaw V. Clark 744 579 Magee v. Commonwealth 66 M'Lean v. Ragsdale 397 V. Magee 205, 212, 268, 689, 649 V. Thorp 167 Maghee v. O'Neil 277, 291, 299 M'Lellan v. Albee 181 232 Magruder v. Peter 559 i). Crnfton 720 Mahawie Bank v. Peck 296 McLeran u. Benton 23 Mahnin v. Bickford 81,86 McLin V. McNamara 219 Mahon v. Cooley 269 McMahon v. Allen 744 746 McMaster r. State 829 Mahorner v. Harrison 514 McMasters v. Bell 693 Mainzinger v. Molir 400, 789 V. Mather 804, 307, 310 Major V. Grigg 429 McMerty v. Morrison 11,31 Mallory v. Gillett 610 McMillan v. Richards 640 V. Tioga R. R. Co. 599 McMillar v. Werner 2 Malson v. Frye 629 MoMuUen v. Grannis 196 Maltby v. Cooper 42,61 Ix TABLE OF CASES. Maltonner v. Dimmick 649 Martin v. Baker 433, 436 Malvin v. Sweitzer 120 V. Bank 510 582, 718 Manby y. Berwicke 705 660 Manchester Bank v. Fellows 373 426, 426 555, 567 V. Braedner 259 V. Broach 195 196, 200 V. Matliewson 182 V Brooklyn 61 V. Tibbetta 580 V. Draher 295 Manderston v. Robertson 301 V. Gable 466 Mandevill v. Lane 134 V, Gray 151 Mandeville v. Wilson 714 719 V. Heathcote 719 Manger v. Ryan 495 529, 544, 555, 678, Mann v. Fairchild 136, 140 141 511 693 V. Falcon 569 V. Knowles 265 V. Flinn 478 V. Letty 599, 600 601, 604 V. Palmer 26, 723 V. Martin 40, 41, 43, 45, 430 Manning v. Dallas 28 V. Tully 8 V. Warren 132 V. Weston 543 V. Wheeler 234, 236 V. Williams 487 Mansell v. Payne 721 V. Willink 535 Mansfield v. Seawell 325 Martindale v. Faulkner «34 Manson v, Felton 482 Martins v. Lyons 234 V. Titeworth 508 600 Marvin v, Hotchkiss 546 Manufacturing Co. u. Bank 404 Mary, The 78 Maples V. Mackey 96 Mary Blane, The, v. Beehler 423 Marcelin v. Creditors 289 Maryland v. Baldwin 112, 116 Marcotte v. Hartman 158 Masher v. Hubbard 244 Marcy v, Marcy 673 Maskell v, Pooley 310 Mardis v. Sliaekleford 335 Mason v. Ayres 635, 637 Mardre v. Leigh 184 V. Broadbent 502 Marienthal v. Mosler 282 740 Marine Bank v. Fulton Bank 52 V. Crosby 151, 159, 607 Marine Ins. Co. v. Young 87 u. Howell 736 Marion Nat. Bk. d. Fidelity, &c. Co. 324 V. Tiffany 478 Marker v. Marker 162 Massachusetts Turnpike Co. v. ridd Markley v. Amos 628 643 138, 148, 702 Marks V. Pell 554, 558, 566 567 569 Massey v. Tingle 525, 527 Marlborough's Ex'ors i . Widmore 484 Mastin v. Branham 209, 2S2 Marple v. Myers 581. V. Waugh 207, 212 Marqueze v. Bloom 216, 217 Mather v. Green 415, 457 Marr v. Gilliam 468 Mathes v. Bennett 618 V. Wilson 152 Matilda v. Cranshaw 582 Marsden v. Punshall 68 Mattern v, McDivett 715 Marseilles v. Kenton 197, 198 226 719 Matthews v. Chrisnian 402 Marsh v. Oliver 144 510 V. Phillips 485 V. Oneida Central Bank 889 V. Switzler 298 160 50!i Mattock V. Todd 704 Marshall's Estate 529 Mattocks V. Chadwick 232, 285 Marshall v. Dalliber 187, 191 21.3 224 II. Lyman 73, 115 7 186 843 Mauney v. Coit 714 148 Maury v. Coyle 890 V. Perry 151 V. Mason 504 507, 581 Marshfleld v. Cheever 502 Maxwell v. Kennedy 150 160, 509 Marsteller v. McLean 25 V. Reilly 198, 242 V. Marstellar 28 May V. Buchanan 94 Marston v, Seabury C 43 V. Cass Co. 94 V. Howe 629 V. Eastin 569 TABLE OF CASES. IXl May 0. Fondulao 94 Merchants' Bank of Baltimore V. y. Hill 640 First Nat. Bank of Baltimore 392 11. King 720 Merchants' Mut. Ins. Co. v. La. Croix 108 V. Rolls Co. 94 Merchants' Nat. Bk. v. First Nat. V. Bumney 698 Bk. 880 Mayberry v. Willoughby 733, 736 Mere, &c. v. Sehuer 41 Mayer o. Freedman 30 Meredith y. Andres 673 Mayfleld «. Seawell 326 V. Sayre 161 Maynard v. May 478 Meriam y. Hassam 531 Mayo !). Cartwriglit 11 Merle y. Andrews 340, 524 Mayor v. Colgate 170, 426 Merraman y. Caldwell 640 y. Horner 79 Merriam «. Bayley 278 429 y. Hays 687 Mayor of London u. Gorry 65 y. Leonard 218 243, 261 Mays y. Dwight ' 667 Merrill y. Tevis 675 ■ Mayse v. Lafferty 636 Merritt v. Day 736 Mead v. Randolph 569 Merryman v. State 25 Meader v. Dollar Savings Bank 316 Metropolitan Nat. Bk. v. St. Louis Meadow y. Dollar Savings Bank 389 Dispatch Co. 145. Meads v. Merchants' Bank 379 Meyer y. Pruger 425, 426. Meaner y. Hamilton 681 y. Pruyn 546 Mease y. Smith 424 V. Quarteman 711 Mebane v. Patrick 467 Miami Exporting Co. «. United Mechanics', &c. Bank 38 States Bank 668, 569- Medbury «. Hopkins 34 Michael y. Girod 534 Meder v. Norton 704 Michan «. Wyatt 679 Medley v. Elliott 644 Michoud y. Girod 138, 143, 533, 706. Medlicott v. O'Donel 135 Michigan, &c. Bank y. Eldred 740 Meegan v. Boyle 579 Michigan Ins. Co. y. Brown 276 804, 549 Meek y. Meek 37,38 Mickey y. Burlington Ins. Co. 106, 108 Meeks y. Vaas 312 Middaugh v. Fox 159 V. Vassault 10,13 Middleton v. Frame 295- Megginson v. Harper 353. 35a' Mehafify v. Dobbs 672 Midland R. Co. c. Smith 161 Meiase y. McCoy 747 Midmer y. Midmer 514 Melia y. Simmons 638 Miegan v. M'Donough 49» Melvin y. Proprietors, &c. 618, 687 Miflin V. Stalker 226 Melliok y. De Seelhorst 207, 216 Miles y. Berry 605, 703 Melling «. Leake 517 V. Moodie 219 Mellish's Estate 632 y. Moody 76, 219 Melius V. Snowman 640 y. Thorn 529 Melver y. Moore 25 Millard v. Chapin 49 Melvin y. Proprietors, &o. 662 V. Hathaway 513. Memphis y. United States 38 Millay v. Millay 64a Memphis Bank v. White 375 Mill Dam Corp'n v. Bulflnoh 629 Memphis, &e. R. R. Co. v. Orr 744 Mill Dam Foundry v. Hovey 51,58 Menard v. Marks 478 Milledge v. Gardner 77 Menendez y. Holt 166, 162 Miller v. Adams 414, 415 Menge u. Frick 120, 128 V. Basohore- 179^ 182, 185, 194, 212, Menkens v. Blumenthal 697 263,265 V. Ovenhouse 681 y. Bear 587 Mercantile Bank «. Carpenter 713 V. Bonsadon 668 Mercein y. Burton 470 y. Brenham 30 Mercer y. Selden 599, 600, 602 y. Brenhaur SO y. Watson 626 y. Colwell 719 Mercer's Lessee y. Seldon 18 y. Commonwealth 89,41 Ixii TABLE OF CASES. Miller v. DeU 529 Minkler v. Minkler 240 V. Dorsey 282, 473, 481 Minniece v. Jeter 263 V. Dow 659 Minot V. Brooks 641 V. Downing 676 V. Thatcher 615, 516 V. Ewing 640 Mirick v. Bashford 433 V. Hackley 359 Missouri Bank v. Beroist 54, 389 V. Hynes Co. 357 Mitchell's Claim 222, 262 V. Jefferson College Trustees 61 Mitchell V. Berry 580, 600, 603 V. Lancaster 166, 226 V. Clay 231 V. Lesser 24, 606 V. Dall ' 295 V. Long Island R. R. Co. 631, 676 V. Foster 130 V. Magee 240 V. Lenox 149 V. Marshall 464 V. Lunt 495 V. McBrian 664 V. McLemore 348 V. Mclntyre 25, 133, 136, 137, 142, V. Mitchell 55, 212 146 V. Ostrom 730 V. Miller 423, 524, 674 V. Payas 698, 699 V. Mitchell 135 V. Sellraan 224 V. Piatt 622, 678, 685 V. Shepperd 537 V. Powers 709 V. Warner 428 V. Race 63 V. Woodson 130, 134 V. Schackleford 640 Mitcheltree v. Veach 96 V. Shaw 625, 626 , 633, 641, 657 Mittenberger v. Commonwealth 80 V. Smith 426 Mix I). Andes Ins. Co. 107 V. State 111, 112, 116 V. Shattuck 737 V. Surls 681 Mixer' ». Sibley 12 V. Talcott 281 Mixler v. Sullivan 412 V. Watson 57,88 Moakly v. Riggs 401 !'. Williams .666, 671 Mobile Bank o. Huggins 58 V. Wood 702 Mode V. Loud 663 Millhaller v. Jones 666 Moers v. White 479 Millhouse v. Patrick •664, 667 Moffat V. Buchanan 470,531 Millington v. Hill 23 V. Strong 671, 672 V. Holland 524 Mofflt u. McDonald 695, 696 Mills V. Darling 5^8 Mohawk Bank v. Broderick 378 260, 316, 353 Molton V. Henderson 412, 522 V. Drewitt 1-35 Monks V. Butler 465 V. Fouke 278 V. Russell 123 V. Fowkes 274, 277, 282, 296, 207, Monro v. Merchant 644 720 Montague v. Perkins 372 V. Jefferson 363 V. Sandwich 468, 469 V. Mills 391 V. Smith 469 V. Saunders 296 Montgomery v. Chadwick 547 , 551, 564 V. Taber 185, 225 198 V. Wildman 205 V. Montgomery 140, 143 Milner v, Davis 575 V. Noyes 152 Milnes v. Cowley 145 Montgomery Bank v. Plannett 478 Milton V. Hayden 668 Montresor v. Williams 501 Milward v. Ingram 721 Moodie v. Bannister 442, 476 Mims i'. Sturtevant 331 Moody V. Fleming 111 , 112, 637 Miner v. Beekman 140, 542, 551, 553, 564, Mooers v. Bunker 22 669 Moon V. Baum 141, 144 — i— V. Graham 400 Moore v. Cable 551 V. Lorman 281 V. Caldwell 829 V. New York 663 V. Caple 546 Mining Co. v. Mining Co. V,2 676 TABLE OP CASES. Ixiii Moore v. Clark 218 Morris v. Hazelhurst 226 V. CoUinshaw 687,690 V. Morris 160 K. Columbia Bank 180, 185, 207, V. Nixon 569 214, 221 , 24], 257, 259 V. Pugh 743 V. Gray 298 V. Richards 368, 369 «. Greene 534 402 V. Hardison 481 Morris & E. R. Co. v. Pruden 161 V. Hillebrunt 482 Morrison v. Chapin 631 a. Houston 130 V. Hays 681, 695 194, 197 V. Mullin 318 , 320, 322, 330 V. Johnston 643 V. Norman 679 V. Knight 709 V. Rogers 60 u. Labbin 43, 723 V. Wilson 635 V. McLendon 44 Morse v. Allen 57 • V. Moore 643 V. Roberts 667 V. Munro 714 Morton v. Chandler 176 V. Parker 486 Mosher v. Hubbard 185 207 212, 216 ' y. Paston 81 Moshier v. Redding 666 V. Petchell 500 Moss V. Gallimore 539, 541 V. Porcher 183, 134, 529 — — V. Scott 676 V. Small 691, 692, 693 V. Shear 624 V. Smith 424, 425, 426 Motley V. Montgomery 330 V. State 46 Mott V. Harrington 668 V. Stevens 226 V. Palmer 432 V. Strong 277 Moulton V. Walsh 26 V. Thompson 628, 633 Mountstephen v. Brooke 168, 192, 240, V. Turpin 693 241, 246 V. Wallis 575 Mowry v. Cheesman 86 V. Webb 654 Moxey v. Carter 395 Moravia v. Levy 720 Moyle V. Landers 702 Morehead «. Gallinger 238 V. Roberts 424 V. Wriston 246 Mueller v. Wiebracht 296 Morewood v. Jones 466 Muir V. Bozarth 711 Morey v. Farmers' Loan & Trust Co. 170 MuUett V. Shrumph . 184, 231 Morford v. Cook 40,41 MuUiday v. Machir 522 Morgan v. Bank 240 Mumford v. Freeman 179, 212, 232, 235, V. Bishop 29 238 V. Brown 330, 335 Munro v. Merchant 634 641, 660 I). Dodge 478 V. Potter 737, 738 V. Hunt 428 Munroe v. Hanson 724 !i. Morgan 552, 564, 567 V. Perkins 56 V. Plumb 329 — ^ V. Phillips 419 V. Eamlands 262, 361 Munshower v. Patten 626, 629 u. Rowland 222, 288, 361 V, Patton 109 V. Taylor 659 Munson v. Halloway 132 V. Tener 56, 702 V. Hallo well 713 V. Varick 55 V. Rice 227 V. Walton 197, 215, 254 Murdis v. Sliackleford 455 V. Zener 338 Murdock v. Hughes 608, 514, 530 Morgan County v. Allen 408, 409 Murgatroyd v. Robinson 465 Morrell v. Frith 196 196, 198, 204, 264, Murlead v. Drummond 63 268, 270 Murphy, In re 22 Morris v. Bacon 541 V. Blair 134 0. Callanan 631 V. Coates 566 V. Edgington 429 V. De France 157 V. Hannick 85 V. Murpliy 529 Ixiv TABLE OF CASES. Murphy v. Springer V. Trigg Murray v. Ballou V. Carter V. Coster 134, 186; V. East India Co. V. Fislibaok V, Fisher V. Hudson V. SlianlcUn V. Toland Muscot V. Ballet Muse V. Donelson Mussen v. Price Mussey v. Mussey Myatts V. Bell Myer v. Beal Myers v. Cronk v. Estell !). White Mygatt V. Wilcox Mylar v. Hughes 680 569 523 184 212, 341, 383, 507, 524, 578, 719 14, 16, 93, 812, 484, 494 556 80 677 637 721 431 726, 731, 733 875 510, 533 309, 733, 736 546, 548 338 542 540 51, 333, 834 656 N. Naglee v. Albright 679 Nance v. Dunlavy 709 Napier v. Gidiere 81 V. Simpson 663 Nash V. Eldorado Co. 368 V. Fletcher 38, 40 V. Hodgson 272, 277, 282, 297, 298 V. Palmer 430, 432 V. Peders 468 V. Turner 665 National Bank u. Carpenter 509 V. Norton 730 Naught V. O'Neal 45 Neal V. Abbott 238 Neale v. Walker 25 Nearhoff v. Addleraan 630, 634, 658, 680 Neave v. Moss 665 Nedyidek u. Meyer 73 Needham's Case 480 Neel V Keel 74 Neele M. McElhenny 691 Neely's Appeal 146, 147, 149 Neil V. Abbott 180 V. Cunningham 478 Neill V. Keith 518 Neilley, In re • 4, 149 Nellis V. Lathrop 671 Nelson v. Bond 96 Nelson v. Booth 554 V. Carrington 154, 159 V. D'Armand 272, 292, 307 V. Herkell 489 V. Snorth 42 Nepach v. Jones 158 Nepean v. Loe 140 Nesbit V. The Amboy 145 Nesom v, D'Armand 307 Nettles V. Nettles 531 Neyes v. Scott 707 Neville v. Northcutt 2 Neritt v. Bacon 61, 546, 550 New Albany, &c. R. R. Co. v. Pickens 407 Newall V. Woodruff 673 New Barbadoes Toll Bridge Co. v. Vreeland 587 Newbern Bank v. Sneed 225 Newby v. Blackley 36 Newcomb v. Neil 185 V. St. Peter's Church 426, 546, 555 Newcombe v. Leavitt 1 Newell V. Dart 746 V. Fowler 403 V. Whigham 414 New England Bank v. Lewis 369 V. Newport, &c. Co. 478 New Hampshire v. Louisiana 111 Newkirk v. Campbell 240 V. Chapron 39 Newlin v. Duncan 172 Newman v. Kettell 316, 353 V. Mackin 664 V. Marvin 744 New Orleans, &c. Co. v. Harper 167 Newsome v. Persons 714 Newson v. Davis 537 V. Thornton 63 Newton v. N. Y. & N. E. R. R. Co. 457 V. Wilmot 432 New York v. Hamilton Ins. Co. 102, 103, 107 V. Louisiana 111 New York Bank v. Livingston .402 New York Belting Co. v. Jones 217, 282 New York D. and Transportation Co. V. Covert 557 New York Life Ins. Co. v. Covert 546, 737 New York, &o. Ins. Co. v. Covert 445 New York, &c. R. R. Co. v. Van Horn 41 New York Rubber Co. u. Rothery 152, 156 Niagara Bank v. Plumb 455 Niblack v. Goodman 176, 198, 240, 242 Nicholas v. PuUin 429 TABLE OF CASES. Ixv NichoUs V. Atwood V. Wilson Nichols V. Aylor V. Boston V. Briggs V. Cabe V. Fox V. Ueynolds Nioklin v. Williams Nicks V. Martindale Nickson v. Touey NicoUs V. Rodgers Niel V. McElhenny Niemceweiz v. Bartlett Nimms v. Commonwealth V. Walker Ninth Ave. R. R. Co. v. N. Y. El. R. Co. Noble V. Bellows V. King V, Merrill Noke's Case Noke V. Awder Nolasco V. Lurtz Nolin V. Blackwell Norcross v. Norcross Norman v. Foster Norris's Appeal Norris v. Gautris Hundred 334 467 632 648 668 742 568, 674 464, 466 10, 488, 490 568 30, 31 626 276 109 325 161 333 431 82 429 428 88 56 642 431 89, 600, 519 129 V. Haggin 132, 168, 702, 712 North V. Barnum 529 V. Hammer 637 V. James 23, 24 u. Platte Co. 132 North America Bank v. M'Call 60 Northcut V. Wilkins 481 Northern Liberties, Bank of, v. Jones 389 Northrop v. Hill 415, 45B V. Wright 637, 644, 648 Norton v. Carpenter 211 V. Colby 211 V. EUam 316, 317 V. Freeker 473, 474 V. Hall 397 tj. Lareo 718 V. Shepard 232 Norwich v. Hubbard 542 Norwich, &o. R. R. Co. v. Storey 74 Norwich, &c. Trans. Co. a. Western Mass. Ins. Co. 103 Nowell V. Nowell 479 Nowland v. Martin 395 Nowlin V. Reynolds 635, 637, 638 Noyes v. Morrill 466 V. Nichols 402 Nudd V. Hamblin 712 Null V. White Water Valley Canal Co. 746, 747 Nunbold v. Smith 240 Nutall V. Browning 296 0. Oakes v. Howell V. Marcy V. Mitchell Uakson v. Beach Oatman v. Fowler O'Bee V. Bishop Ockenden, Ex parte O'Connor v. Lewis 140 689 197, 486, 487 184 679 89, 499, 535 63 122, 129 Ode V. Manhattan El. R. R. Co. 161 Oden V. Greenleaf 324, 325, 395 Odiorne v. Lyford 674 O'Dougherty v. Felt 542 Offut V. Chapman 215 V. Henderson 25 Ogden V. Saunders 37, 39 Ogdensburgh, &c. R. R. Co. v. Frost 58 O'Hara v. Richardson 658, 690 V. State N. Y. 326 Ohio L. & T. Ins. Co. v. Winn 646 Olcott V. Scales 166 V. Tioga R. R. Co. 599 Oliphant v. Smith 41 Oliver v. Berry 678 V. Gray 169, 172, 178, 179, 205, 207, 227, 240, 268 V. McClure 38 V. Phelps 298 V. Piatt 504, 512, 631 V. Powell 666 V. PuUan 23 V. Thomas 51 Oliver Lee & Co.'s Bank 38 O'Neale v. Lodge 68 O'Neil V. Maghee 363 Oothout V. Ballard 369 V. Thompson ' 176, 177 Orbison v. Morrison 656 Ord V. De La Guerre 529 V. Heming 554 V. Ruspini 728 V. Smith 658, 566 Oriental Bank v. Frieze 37, 38 Ormond v. Martin 649 Ormsby v. Letcher 187, 208 V. Vt. Mining Co. 155 Orr V. Hadley 542 Orrel v. Maddox 693 Orthwein v. Tliomas 311 Ixvi TABLE OF CASES. Osboru V. Jaines 42 Paris v.. Hiram 131 V. Ryder 125 Parish v. Eager 45 Osborne v. Endicott 613 Park V. Cochran 687 V. Moncure 121 V. Peck 546 V. Mo. P. R. R. Co. 161 Parker v. Ash 89, 500, 620 V. Wilkes 710 V. Banks 544, 551 Osgood V. Strauss 367 V. Braucker 66 Oswald V. Leigh 424 502 V. Carter 621 Ott V. Whitworth 176 740 Otterback v. Brown 265 V. Culvertsen 403 Otway V. Ramsey 81 V. Dunn 430 Oughterloney v. Earl Powis 188 1). Erwin 28 V. Powis 520 V. Gaines 328 Outcalt V. Ludlow 654 655 V. Gonsalus 45 Outhouse V. Outhouse 417, 447 468 V. Hall 522 Overfield v. Christie 629 693 695 V. Hallock 94, 116 V. Sutton 23 V. Hawk 116 Overstreet «. Bates 529 94 Overton v. Bigelow 569 V. Irwin 25 410 V. Kane 25 Oviatt V. Sage 73 V. Locks and Canals 631, 672, 674 Owen V. Campbell 698 V. McLaughlin 665 V. Mortbn 672 404 V. State 440 V. Merrill 726, 731 V. Western Savings Fund 415 V. O'Bear 698, 699 V. Wooley 206 V. Parker 626, 630, 631 Owiiigs V. Norwood 555 V. Patrick 64 V. Owings 395 V. Peeble 116 Ozias V. Johnson 72 V. Shannon 157 241 372 P. V. Tainter 58 V. Watkins 553 Pace n. HoUaran 2 Parkersburgh Bank v. Als 390 Paddleford v. Dana 40 Parks V. Hall 568 V. Dunn 44 V. Mitchell 467, 468 Paddock v. Colby 186, 216, 228, 232 V. State ,109 Pafff. Kidney 507 Parley v. Little 192 Page V. Boyd 478 Parmalee v. Lawrence 568 V. Kinsman 672 V. M'Nutt 109 V. Page 513 V. Thompson 22 V. Wentworth 122 Parris v. Cobb 349, 523 V. Weymouth ' 122 Parsons v. Chamberlain 130 Paige V, Hughes 533 V. McCracken 10, 18, 580, 599, 601, Paine v. Drew 31,33 602 V. Hutchings 630 631 ,679 V. Northern, &c. Iron Co. 185, 224, Palmer v. Andrews 288 238 . V. Butler 247 268 Partington v. Butcher 168 . V. Dodge 733 ,734 V. Woodcock 643 . V. Eyre 555 Partlow V. Singer 288 V. Gillispie 193 194 ,215 Partridge v. Here 644 V. Jackson 566 V. Mitchell 476 V. Palmer 317 ,322 V. Schwartz 715 ■ V. Shaw 588 V. Wall 509 Paquetel v. Gauche 666 V. Wells 606, 511, 527 Pare v. Clegg 535 Paschall v. Hall 339 TABLE OF CASES. Ixvii Patch V. King 739 Pearson v. Harper 231, 238 V. Wild 554 Pearsons v. McCracken 600 Ptttohen t). Pierce 562 Pease v. Bennett 80 Paterson v. Tash 63 81,84,86,93 Patrick v. Clienault 640 V. Lawson 621 - — V. Farmers' Ins. Co. 99 V. Pilot Knob Iron Co. 542 Patterson v. Clioate 729, 730, 733 Peaslee v. Barney 513 V. Cobb 473,474,476,486 ' V. Bredt 353 V. Gaines 40,43 316, 423, 498 J). Hunsell 666 Pecham v. Raynal 729 V. Lynde 408 Peck V. Bank 702 V. Nicholl 94 —. — V. Botsford 7 343, 482, 483 60 —■ — V. Cheney 26 V. Beigle 620 , 621, 624 V. Hurlbut 413 V. Todd 354 • V. Mallam 426 Pattison v. Horn 668, 569 -^ — ' V. Mallons 646 Patton V. Ash 219 V. New York & Liverpool Steam- 211, 212 254, 272 ship Co. 294, 296, 307, 331, 383, V. Magrath 226 385, 716 V. McFarlane 438 V. RandaU 9 313, 580, 602 Paul V. Choteau 514 V. Ward 673 V. Stone 120, 121 Peckham v. Uaynal 729 V. Witman 438 Pederick v. Searle 686, 696 Faulin v. Kaighn 395 Pedrick v. Saund^rson 502 Pawlet V. Sandgate 59 Peebles v. Mason 197 Paxson V. Bailey- 649 Peek V. Wheaton 96 Payne V. 718 Peele v. Cheerer 696 V. Blackshear 635, 637 Peerless v. Watertown 43 V. Couch 57 Pegram v. Staltz 25 V. Gardiner 152 316, 330 u. Williams 33 V. Gardner 330, 383, 387, 389 Pegues V. Warley 693 V, Hathaway 505 Pellew V. Winford Hundred 129 V. Hook 704, 705 Pells V. Snell 699 V. Patterson 514 Pemberton v. Piatt 429 w. Pusey 473, 475 Pemental v. San Francisco 740 V. Slate. 383, 718, 732 Peiia v. Vance 271, 304 Peabody v. Chapman 399 Pender v. Jones 566 V. Roberts 661 Pendergrast v. Foley 13, 522, 602 . V. Tarbell 513 V. GuUett 576,580,649 Peaceable v. Reed 672, 690 Penfield v. Chesapeake B. R. Co. 593, 596 Peacock u. Haven 478 Penley v. Waterhouse 688 - — u. Newbold 620 Penly v. Beacon Ins. Co. 104 V. Rhodes 63 Penn v. Crawford 185, 216, 220 Pearce v. French 661 V. Glover 430 V. House 10, 680 V. Weston 714 —r- V. Nix 668 Pennell v. Chandler 104 38 Pennepacker v. Pennepacker 94 V. Zimmerman 486 Penniman v. Rotch 716 Peardon v. Underbill 466 — — V. Vinton 66,88 Pearpoint v. Graham 119- Penning v. Plat 429 Pears v. Laing 566, 667, 666 Pennock v. Dialogue 22 Pearsall v. Chapin 60 — ' — V. Freeman 702 V. Dwight 26,33 — — V. Hart . 742 V. Kenan 38 Penn. Co, v. Piatt 161 V. fhorpe 634 Penny v. Brice 485, 488 Pearson v. Darrington 198, 238, 241 1 V. Watts 496 Ixviii TABLE OF CASES. Penobscot R. R Co. v. Mayo 417, 712 Penrose v. King 80 Pensacola & A. R. Co. v. Hackson 161 People V. Everest 133 V. Gilbert 4, 109 V. Irwin 569 V, Lincoln 56 V. Livingston 658, 660 V. Lord 48 V. Oran 511 V- Pierce 546 V. Supervisors 40 V. Supervisors of Columbia 41 V. Supervisors of Ulster 41 V. Ulrioh 130 V. Wayne Co. Judge 7, 38 V. Wemple 421 V. Wood 426, 546 Peoria Fire & Mar. Ins. Co. v. Hall 101, 104 Peoria Ins. Co. v. Wiiitehill 99 Pepper v. O'Dowd Peratta v. Gonochio Perkins v. Cartnell 8 V. Currier V Gartnell V. Governor V. Guy V. Hart V. Littlefield Perley v. Little Perry's Estate, He Perry v. Chesley V. Craig V. Edwards V. Jenkins V. Lewis V. Marston V. McHenry V. Munger Persons v. Jones Peters v. Barnhill V. Brown V. Delapaine V. Elkins Peterson v. Cobb V. Ellicott 7). McCullough Petre v. Petre Petrie v. Mott Pettengill v. Patterson Pettingill v. Pettingill Pettiward v. Prescott Petzer v. Burns Peuguet, Re Peyton v. Barton 622 666, 667 1, 89, 132, 134, 531 150 500 664 26, 31, 36 76 330, 402 166, 181 262 714 lU, 159 429, 430 15, 484, 494 34 566, 567 514 478 394 395 168, 202, 217, 240 72, 140 543 167 194 625, 629 705 218 478 499 471 11 44 674 Peyton v. Carr 478 V. Stith 136 137 ,142 623 Phalen v. Clark 137 V. Cook 133 Phares v. Walters 43 132 Plielan v. Douglass 119 V. Iron Mountain Bank 389 Phelps V. Patterson 334 V. Sleeper 179 186 211 V. Stewart 181 226 233 V. Taylor 666 V. Williamson 183 233 V. Wood 746 Phenix Warehousing Co. v. Badger 406 Philadelphia, &c. Trust & !ns. Co. V. P. & E. R. R. Co. 132 Philadelphia v. Passenger E .E. Co. 41 Philippi V. Philippi 512 531 Phillips V. Beal 476 V. Belden V. Bradley V. Broadley V. Cage V. Gregg V. Holman V. Mahan V. Munnings V. Phillips V. Pope V. Rogers V. Rothwell V. Sinclair Phoenix v. Gardner 721 331, 335 266, 334 51 672 508 304 502, 519, 532 178, 180, 181, 222 8 315 664 552 568, 569 Phoenix Ins. Co. ti. Underwood 103 Phoenix Warehousing Co. v. Badyer 406 Piatt V. Oliver 80, 504 V. Smith 582 i,-. Vattier 44, 45, 146, 148, 50S, 532 Pickard v. Valentine Pickering v. Stafford V. Stamford Pickett V Ford V. King r V. Leonard Picot V. Bates Picquet v. Curtis Pierce v. Brown V. Lacy V. McClellan V. Patton !i. Robinson V. Seymour V. Tobey Piggott V. Rush Pigot V, Davis 369 520 500, 501, 502 478 278, 282 282, 283 89, 499 368 543 87 146 40 569 233, 235, 237, 262 40 6, 50, 484, 583 80 TABLE OF CASES. Ixix Pike V. Warren 731 Pilolier V. Flinn 139 Pillsbury v. Moore 674 Pincke v. Thoriiycroft 133 Pinckney v. Burrage 9 Pindall v. Marietta Bank 296 Pindell v. Mulliken 137, 142 Pinkerton v. Bailey 242, 249 V. Walker 504 Pinkeston v. Taliaferro 395 Pinney v. Fellows 514 Plnnock v. Clough 614 Pinson v. Ivey 504, 508, 623, 533 Piper V. Hoard 708 V. Sloneker 688 Pipher v. Lodge 506, 630 Pitkin V. Hewitt 10 Pitman v. Bump 37, 38, 41 V. Hooper 78 Pitt V. Holmes 377 V. Lord Daore 32, 163 Pittam V. Foster 243 Pitts V. Hunt 738 Pittsburgh & Connellsville E. E. Co. V. Plummer 383, 406 Pittsburgh, &e. R. E. Co. v. Hine 35, 36, 491, 492 V. Ryers 320, 322 Pitzer B. Burns 146, 655 V. Harmon 395 Place V. Union Ex. Co. 108 Planck V. Anderson 450, 451 Planters' Bank v. Union Bank 389 Plato V. Eoe 669 Piatt V. Piatt 152 Playf air i;. Cooper 502 Plumer v. Harper 462 V. Plumer 664, 667 Plummer v. Erskine 296 Poe V. Conway 168 Poignard v. Smith 618, 629, 633, 634 Poile V. 487 Poillon I). Lawrence 352, 592 Pollard V. Barnes 467, 468 V. Sears 473 V. Tait 43, 44 Pollock V. Hoag 403 Polly V. McCall 462, 465 Pomfret v. Eicroft 429 V. Windsor 605, 517 Ponce V. McEloy 327 Pond V. Williams 272, 282, 297, 298, 299 Ponder v. Carter 394 Pool V. Eolfe 238 Pope V. Biggs 671 —— V. Bowman 398 Pope V. Hanmer 614, 626, 637, 674 Portage Co. Ins. Co. v. Stukey 99 V. West 103 Porter v. Androscoggin E. E. Co. 87 V. Blood 187, 292, 300, 301, 306 V. Hill 167, 181, 673 V. Nelson 4 V. Eutland Bank 513 Porterfleld u. Butler 610 Portland Bank v. Maine Bank 119 Portlock V. Gardner 135 Pott V. Clegg 52, 63, 64, 242, 386 Potter V. Stransky Potts V. Gilbert V. Smith Pottsgrove Twp. v. Penn. & E. Co. Powell V. Bragg V. Milbank V. Murray V. O'Neill V. Smith Power V. Hathaway V. Telford Powers Re V. Council Bluffs V. Manhattan El. E. E. Co. Poynder v. Bluck Pratt V. Canfield V. Huggins V. Northam V. Page V. Skolfield V. Swaine V. Weyman Pray v. Garcelon V. Pierce Preebles v. Hannaford Prenatt v. Eunyon Prentice v. Dehon V. Elliott Presbrey v. Williams Prescott V. Hubbell V. Johnson V. Eirers Presley v. Davis V. Holmes Presslar v. Stallsworth Preston v. Briggs V. Day V. Preston Prevat v. Lawrence Prevo V. Lathrop V. Walters Prevost V. Gratz 545, 649 687, 693 432 S. V. 161 467 465 149 711 394, 399 30,31 41 502 458 161 264 650 61, 87, 170, 546 134, 135, 137, 139, 142 455 643 484 721 167, 181, 226 629 122 280, 716 40 627 120, 121, 353 96, 704 625 619 507 637 394 470 478 146, 147, 149 667 316 523 504, 505, 511, 512, 532, 706 ^Ixx TABLE OF CASES. Prevost V. Johnson 631, 634 Pyle V. Beckwith 702, 703 V. Johnston 634 — '■ — V, Maulding 122 Prewett v. Buckingham 507 V. Monaghy 76 V. Kunyan 719 Prey v. Garcelon 196 Price V. Berrington 705 Q. V. Cooper 652, 666 1 u. Emerson 398 Quackenbush v. Ehle 332 V. Hopkins 42 Quantock v. England 169 V. Jackson 684 Quarles v. Littlepage 240 V. Kopner 547 Quimby v. Buzzle 376 V. Mulford 511 V. Putnam 400, 739 V. Nixon 375 Quincey v. Sharp "183 V. Price 239, 266 331 Quinn v. Carroll 275, 481 V. Slaughter 582 Quint V. Little 552 V. Tucker 119 120 Prideaux v. Webber 10, 15 1 Pridgen v. Hill 714 R. Priest V. Daver 312 V. Watkins 495 Kabb V. Harland 41 V. Wheelock 542 Eackham v. Marriott 181, 182, 229, 237 Prince v. Kopner 552 Raddam v. Morley 557 Printup V. Mitchell 74 Baefle v. Moore 352 Prior V. Horniblow 94, 480, 500 502 RafEertyi). King 548 Pritchard v. Chandler 377 Ragan v. Walker 514 V. Draper 527 ,729 Ragland j>. Morton 531 V. Hamell 185 Bahsuhl <;. Lusk 383 V. Spencer 40,43 Eahway Nat. Bank v. Carpenter 386 Proctor V. Bigelow 699 Railroad Co. v. Bayless 457 V. Cowper 564 V. Durant 511, 512 V. Marshall 298 V. Stockett 40 431 Rakestraw v. Brewer 653, 558 Proprietors, &c. v. Laboree 42 Ralfe V. Pillaud 262 Proprietors of No. 6 v. M'Farland 648 Ralph V. Bagley 634 Protection Life Ins. Co. V. Palmer 121 Ralston v. Lothair 88 Protector, The 11 Ramohander v. Hammond 714 Proud V. Proud 602 ,520 Ramsay v. Deas 506, 533 Pruyn v. Comstock 51 V. Dozier 699 V. Milwaukee 364 V. Warner 272, 296, 297, 298 Pryor v. Ryburn 604 Ramsey v. Dens 506, 533 V. Wood 427 Rand v. Rand 122 Puckel V. Moore 25 Randall v. Bradley 546, 566 Pugh V. Bell 504 607 ,532 V. Raab 580 V. Duke of Leeds 124 V. Rich 395 Pultney v. Warren 133 148 ,163 Randell v. Whipp 464 Purcell V. Wilson 672 Randolph v. Carlton 671 Purdon v. Purdon 190, 288 289 ,484 V. Ward 11 V. Seligman 702 V. Ware 148 Purdy V. Austen 184, 207 214 ,216 Randon v. Toby 221, 228 Pursell V. Fry 385 Rank v. Hill 85 Purton V. Smith 595 Rankin v. Teubrook 600, 603 Purtz V. Cuester 671 131, 330 Putnam v. Bowker 678 Rantin v. Robertson 430 V. Dike 31 Rashleigh v. Williams 431 V. Foster 240 Ratcliffe v. Davis 67,68 V. Tinkler 158 V. 430 TABLE OF CASES. Ixxi Eathbone v. Bradford 39 Rathburn v. Northern Central E. E. Co. 599 Ealtoon v. Orerbacker 496 Eaudan v. Tobey 190 Eaux V. Brand 717 Eavenscroft v. Frisby 502 Eawlings v. Adams 478 Raw son v. Fox 642 Hay V. Barker 643 V. Bogart 151 —r- "■ Goodman 518, 680 Eayland v. Justices 540 Eaymond v. Simonson 324, 825, 340, 507 V. Stevenson 315 Eayner v. Koehler 405 V. Pearsall 156 Eayuor v. Lee 627 Eea V. Minkler 488 Eead v. Boardman 295 V. Frankfort Bank 38 V. Goodyear 629 V. Hurst 303, 304 V. Johnson 282 V. Markle 469 V. Eead 4 V. Sturtevant 362, 364 V. Thompson 643, 691, 692 V. Wilkinson 180, 186, 207 Eeade v. Edwards 546 V. Eeade 55, 517 Eeadiog v. Gray 433 Eeading of Judge Trowbridge 541 Eeady v. Thompson 478 Eeal Estate Bank v. Hartfield 288 Eeardon v Leary 169 liector V. Conway 476 Eedfield v. Parks 114, 159 Eedwood v. Eeddick 504, 505, 629 Eeed v. Clarke 96 V. Field 678 V. Hurd 296 V. Miller 94 V. Shepley 666 V. Smith 721 V. West 147, 149 Reeks v. Postlethwaite 567 Reeves v. Capper 561 V. Corell ' 241 V. Dougherty 183 V. Hearne 232 V. PuUiam 394 Reg. V. Un. of Oxford 593 Regis V. Herbert 423 Eeid V. Clark 7 V. Dickons ■ 294 Eeid V. Eibert 634 V. Supervisors, &c. 420 Eeigal v. Wood 558 Eeigart v. White 402 Eeigne v. Desportes 486 Eeitz V. Eeitz 841 Eeizenstein v. Marquardt 323, 529 Reland v. Eckert 658 Eelf V. Eberly 606 Eelfe V. Eelfe 559, 560 Eemseu v. Wheeler 420 Eenard v. Brown 541 u. Fiedler 69 Eennie v. Eobinson 665 Eense v. Southard 709 Renshaw w. Herbert 141, 144 Eensselaer, &c. Plank Road Co. v. Barton 58 Eenwick v. Eenwick 341 Eeppert v. Calvin 625, 727 Eepublio, Bank of the, v. Baxter 379 V. Mills 389 Eetor, &c. «. Vanderbilt Eetzer v. Wood Eew V. Barber V. Pettet Eex V. Adderley V. Edingtou V. Peckham Rexf ord v. Marquis Eeynolds v. Baker V. Collins V. Doyle V. Green V. Hamilton V. Johnson V. Sumner Ehind v. Hyndman Rhines v. Evans Ehode Island s. Massachusetts 404 25 58,60 267 120, 130 541 130 466 2 211 372 373 419, 426, 552, 685! 564 483 Ehodes v. Smethurst V. Turner Rhoton V. Mendenhall Rhyn v. Vincent Ricard v. Williams Rice V. Burt V. Hoemer V. La wan V. White V. Wilder Rich V. Niagara Savings Bank — r— V. Ricketts Eichards v. Allen V. Bent V. Bickley 373 529 820 336, 340 109, 136, 137, 142 10, 489, 493 531 590, 592, 709 134 137, 142 713 415 584 ■702, 703 184 281, 289 94 411, 412 436, 438 8, 51, 86 Ixxii TABLE OF CASES. Richards v. Hannay 212 Robbins v. Harvey 25, 342 V. McKie 518 V. Otis 166, 233 V, Richards 368, 484 Roberts v. Berdell 470, 531 Richardson v. Allen 11 V. Clark 464, 465 V. Barrick 568 V. Ely 384 V. Bleight 724 V. Littlefield 646 , 555, 564 V. Broughton 518, 648 569 666 V. Moore 9 V. Kuhn 535 V. Morgan 673 V. Pond 465 V. Pillow 7, 6.38 V. Thomas 10, 217, 226, 243, 261, 278, -282 V. Read V. Riddle 450, 454 402 V. Younge 652, 556 V. Sykes 140 Richman v. Richman 324 325, 356 : V. Totten 721 Richmond, Ex parte 242, 482 Robertson v. Alford 584 V. Aiken 546 V. Gates 323 V. Fnqua 186 158 V. Irons 404 V. Dun 529 V. Maryland Ins. Co. 8 V. Maclin 533 Ricker v. Blanchard 567 410 V. Hibbard 662 V. Wood 639 Rickert v. Gristwite 426 V. Wurdeman 604 Ridd V. Moggridge 272 Robie V. Briggs 297 Riddle v. Backus 332 V. Flanders 699 V. Beatty 59 Robinson v. Alexander 524 V. Kreinbieht 723 V. Allen 25 V. Philadelphia 684 V. Campbell 704, 707 V. Whitehill 528 V. Doolittle 298 Riddlesberger v. Hartford Fire Ins. V. Farrelly 568 Co. 104 V. Fife 547, 551, 552, 553, 567 Rider o. Maul 672 V. Fraley 196 Ridgeley v. Crandall 76 V. Gardner 52 V. Ogle 641 V. Hodge 479 V. Steamboat Reindeer 40 V. Hook 146, 508, 512, 531, 578 Ridgeway v. Halliday 649 V. Imperial, &e. Mining Co. 599 Ridley ?;. Hetman 133 661 Riggs V. Dooley 28 601, 637 V. Lake 657, 513 V. Phillips 663 Rigley, Re 589 V. Preseott 86 Riley v. Jameson 625, 677 V. Robinson 511, 746 Ringo V. Brooks 208, 240, 243, 246 V. State 710 Ringold V. Cheney 626, 627 V. Sweet 634, 641, 675 Ripley v. JEtna Ins. Co. 100, 103 V. Taylor 525 V. Astor Ins. Co. 106 107, 108 Robson V. Jones 520, 529, 530 V. Corwin 27 Roby V. Colehour 159 V. Withee 393 Roeh V. Callen 502 V Yale 649 Rochdale Canal Co. v. King 163 Riser v. Snoddy 481 Rockport V. Walden 41 Ritter's Appeal 473 Rockwell V. Servant 146, 544, 551, 552 Rivers v. Thompson 638 Rockwood V. Brown 376, 377 V. Washington 25 Roddam v. Morley 556 Rives V. Nye 324 Rodgers v. Nowill 162 Roach V. Caraffa 529 V. Rosser 354 V. New York & Erie Ins. Co. 99, 103 Rodman v. Hedden 397 Robarts v. Robarts 266 715, 716 Rodrigue v. Fronty 216 Robbins v. Farley 181, 195 Roe V. Foster 410 TABLE OF CASES. Ixxiii Roe V. Swart 746 Rowe V. Thompson 373 Roffey, Ex parte 145, 187 368 Rogan V. Walker 149, 568, 569 Rowell V. Patteson 24 Roger V. Benlow 625, 657 Rowley v. Rowley 724 Rogers v. Allen 465, 466 V. Tompkins 424 V, Anderson 739 Rowsell V. Morris 495 V. Brown 13, 23, 601 Royer v. Benlow 634, 679, 684 426 Royster v. Granville Co. 262 V. DrufCel 746 Ruuker v. Frazier 198, 272, 288, 732 V. Handy 41 224 V. Hillhouse 10 313 , 602, 643 217 V. Humphreys 543 Ruckmaboye y. Mottichund 35 629 Rudd V. Sewell 162 V. Moore 541, 543 Rudy V. Wolf 401 V. Murray 514 Ruff V. Bull 313, 353, 602 V. Sanders 148 Ruffln V. Commissioners, &c. 389 —^— V. Southern 172, 218 Ruggles V. Keele 722 476 V. Keeler 30, 31, 33 V. Wintou 478 Rumball v. Bull 853 Roland v. Logan 745 Rundle v. Allison 140 RoUeston v. Dixon 485, 487 Runey v. Schoneberger 630 Romine t>. Romine 395 Runnels v. Runnels 639 Roosevelt v. Marks 135, 137, 186, 187, Runner's Appeal 4 188, 208, 278, 282 283 511 , 729, 730 Runtin v. Robertson 430 Root V. Bradley 40 Runyan v. Mensereau 542 V. Ferrin ' 638 Rupert V. Dantzer 746 Roqtin v. Robertson 429 Rush V. Barr •533, 702 Roots V. Mason 715 V. Fales 244, 266 Rosborough v. Albright 414 Rushing v. Rushing 511 Roscoe V. Hale 217, 242, 261 282, 283 Russ V. Cunningham 262 Rose V. Bryant 305, 307 Russel V. Southard 707 V. Davis 664 Russell V. Allard 671 V. Gould 499, 724 V. Barton 7 Roseboom v. Billington 292, 303 V. Copp 166, 214 Rosenbaum, Re 421 V. Davis • 622, 628, 683 Rosenthal v. Walker 705, 706 V. Erwin 666 Rosevelt v. Marks 729 730, 731 V. Gilraore 60 Ross, Ex parte 514, 516 207, 216, 246 V. Gould 661, 724 V. Modell 635, 637 V, Jones 11,12 V. Slaton 687 V. Lafayette, &c. R. R. Co. 406 V. Titus 666 V. Luther 740 Rustomjee v. The Queen 110, 117 V. Mitchell 545, 549 Rutherfold v. Hobbs 693 V. Norvelle 547, 564 566, 569 Rutin II. Robertson 430 V. Ross 179, 244 Rutledge v. Smith 513 Roth V. Palmer 60 Ryall V. Morris 240 Rotheram v. Green 466 — - V. Rowles 62 Rothery v. Mannings 266, 334 Ryan v. Flint 2 Round V. Bell 502 ' V. Jones 478 Rous V. Walden 311 134 lioutledge v. Ramsay 196, 222, 264, 268, Ryder v. Manzell 671 269 V. Wilson 45 Rowan v. Kirkpatrick 478 Ryer v. Stockwell 329 Rowcroft V. Lomas 192, 260 Ryerson v. Eldred 666 Rowden v. Murphy 157 Ryress v. Farwell 671 Rowe V. Atwater 804 Ixxiv TABLE OF CASES. s. San Francisco v. Fulde Sanger v. Nightengale 693 28,97 Sacia v. De Graff 604 V. Upton 408 Sadowsky v. McFarland 524 Sarah Ann, The 78 Sage V. Ensign 310 Sarell v. Wine 484 Sager v. Warley 500 Sargent v. Bigelow 152 Sailor v. Hertzog 686 ,690 V. Franklin Ins. Co. 58 St. Albans !!..Failey 296 Satterlee v. Fraser 340 St. Charles County v. Powell 118 V. Matthewson 89, 668 St. John V. Garrow 240 Satterthwaite v. Abercrombie 589, 597 St. Louis, &c. Co. V. Souland 57 Saunders v. Annesly 693 St. Louis, &c. R. E. Co. u. Brown 28 V. Catlin 133 St. Louis V. Gorman 636 638 697 V. Harris 513 St. Louis University v. McConn 663 V. Lord Annesley 133 St. Mary's Church v. Miles 426 668 Sale «. McLean 514 Savage v. Aldren 325, 326, 327, Salisbury v. Black 439 368 Salmon v. Bradshaw 431 V. Medbury 365 V. Vallejo 428 Savile v. Jackson 445 Salmons v. Davis 640 Savings Inst. o. Littlefield 278 Salt Springs Bank v. Barton 121 Sawyer v. Kendall 695, 696 Salve V. Ewing 703 V. Lappan 339 Sambs v. Stein 10 V. Smith 502 Sample v. Coulson 514 V. Tappan 295, 340 Sampson v. Burton 401 Saxton w. Hunt 634 V. Sampson 38, 42, 43 Sayles w. R. R. Co. 94 Sam Sliek, The 12 604 607 V. Tibbetts 507, 510 Samuel v. Zachary 395 Sayre v. Townsend 514 Sanborn v. Cole 297 Scales V. Jacob 168, 230 V. Neilson 471 Scantlin v. Allison 428 V. Stetson 7 Scarborough v. Dugan 40 Sanchez v. Don 132 158 Scarlett v. Hunter 536 Sanders v. Benson 52 Scarpelini v. Atchison 368 V. Coward 825, 328, 419 439 444 Schack V. Garrett 331 V. Hamilton 60 Schaeffer «._ Hoffman 262 V. Norton 122 Schall V. Eisner 718 481 687 Sanderson v. Milton Stage Co. 272, 274, Scheack v. Zubler 6&3 288 Schenectady, &c. Plank Road Co. v. V. Olmstead 427 Thatcher 407 Sandford v. Allen 403 Schindel v. Gates 298, 727 736, 737 V. Clark 233 Schlosser V. Lesser 742 V. Dick 742 Schmidt v. Pfau 198 V. Wicks 478 Schneider ». Botsch 625, 663 Sands v. Annesley 366 Sehnetz v. Arratt 668 V. Burt 744 Schoener v. Lissauer 397 V. Campbell 10 Scholey v. Walton 285, 487 V. Gelston 166, 185, 186, 200, 207, Scholfleld V. Iowa Homestead C 0. 436 213 730 School Directors v. Georges 118 365 366 School District v. Blakeslee 649, 654 V. Lyon 122 123 V. Xenia- Bank 281 V. St. John 26 365 366 V. Schreiner 141, 144 Sanford's Case 13 Schooner v. Vachon 832 Sanford v. Clark 224 Schroeder v. Ins. Co. 740 W.Hayes 190,276,289 328 V. Mickles 730 Schultz V. Elliott 670, 672 TABLE OF CASES. Ixxv Schumacker v. Siebert 422, 545, 549, Sewall V. Valentine 812, 493 567, 666 Sexton V. Zett 456 Schutz V. Fitzwalter 695, 696 Seymour v. Carll 662 SehuylkiU, &c. R.E. Co, V. McCreary V. Deming 39 692 V. Freer 66 , 512, 529 Schwartz v. Kuhn 629 V. Street 594 Scott V. Britton 569 Shackleford v. Douglass 172 635, 676 V. Smith 634 11. Blkins 657, 660 Shaddick v. Bennett 191 23, 602, 603 Shadwell v. Hutchinson 467 V. Hancock 473, 474, 475, 477, 479 Shaffer v. Lowry 686 V. Jones 498, 499, 520, 521 V. Shaffer 303, 304 1'. Mcintosh 72 Shally V. Stahl 679 V. Nichols 394 Shannon v. Dunn 575, 576 V. Osborne 329 Shapley v. Garey 131 • V. Twiss 428 Sharkey v. Mansfield 381 263 Sharp, Ex parte 55 V. Warner 59 V. Brandon 614 658, 660 Soovel V. Gill 172 V. Johnson 685 Scovil V. Scovil 478 — : — V. McGuire 740 Scoville V. Thayer 408 V. Sharp 134 Scruggs V. Scruggs 630 Shaver v. Radley 505 Scull V. Wallace 186, 192, 482 w. Woodward 569 Sea Ins. Co. v. Stebbins 541 Shaw V. Allen 194 Seago V. Dean 721 V. Cook 744 Seagram v. Knight 480 —^ 0. Newell 181, 202 231 246, 295 Seals V. Cashier 540 V. Nicholay 605, 696 Seaman, Ex parte 189 V. Silloway 172 V. Browning 429 — V. Stenton 429, 432 Searight :;. Craighead 726, 731, 733 Sheafe t». Gerry 555 Searle v. Barrington 303 Shearer v. Fowler 58 Sears v. Shafer 26, 704 Shearman v. Akins 419, 518 Seayer v. Lincoln 740 Shed V. Brett 869, 373 Seaward v. Lord 207, 2§0 Shedd V. Powers 682 Sedden v. Senate 429, 430 298 Sedgewick v. Girding 232, 234, 265 Sheets v. Selden 130 Seel V. Matthews 276 Shelburne v. Robinson 410, 411 Seig V. Accord 482 Shelby v. Guy 36, 492 Seignorett v. Noguire 127 V. Shelby 134 Seltzinger u. Weaver 432 Sheldon v. Purple 58 Selby B. Cliute 428 V. Sheldon 89 324 531, 532 Selden v. Preston 11 V. Weldman 532 Selleck v. Turnpike Co. 298 Shelton v. Carnal 672 Sellman v. Bowen 700 Shepard v. Martin 664 Selltey v. Selltey 737 Shephard v. Little 58 Semmes v. Boykin 295 Shepherd w. Thompson 8, 220, 262 V. City Fire Ins. Co. 103 Shepley v. Waterhouse 728, 731 V. Hartford Ins. Co. 11,12 Sheppard v. Cook 168 V. Magruder 276, 481 V. Duke 94 Semple v. Cook 656 Sheppards v. Tiirpin 508, 533 Sennott v. Horner 211 Shepperd v. Murdock 212, 567 Senseman v. Hershman 179, 194, 211, Sherman v. Jacobs 282 212, 265 216 Sepulreda v. Sepulrcda 631 V. Western, &c. Co. 812, 489, 490 Serrell, Ex parte 426 Sherrod v. Bennett 181, 200, 226 Setette v. Jennings 733 Sherry v, Frecking 621 Ixxvi TABLE OF CASES. Sliervell v. Hopkins 32 Simmons v. Robertson 666 Sherwood v. Dunbar 395, 423 Simmons Creek Coal Co. v Doran 151 V. Haight 295 Simms v. Magruder 473 V. Suttou 135, 136 137, 138, 142, 504 143, 606 Simons v. Fox 469 Sliewen v. Vanderhorst 476 V. Steele 402 Shibia V. Ely 504 Simonton v. Clark 208, 236, 238 Shields v. Anderson 704 Simpson v. Coe 466 V. Lozear 542, 671 V, Downing 634 V. Taylor 80 367 Shillaber v. Wyman 495 Sims V. Bardoner 24 Shipley v. Shilling 198 V. Brutton 349, 449 Shipp V. Davis 550 V. Canfield 1,478 Shitler v. Bremer 167 181 185, 212 V. Everhardt 24 Shoemaker v. Benedict 732 , 733, 736 V. Gay 311 V. Smith 514 383 Shoenberger v. Adams 517, 722 V. Hampton 123, 129 ShoUy V. Stahl 634 Sinclair v. Bank 466 Shoneman v. Felgley 733, 734 Singleton v. Moore 144, 533 Shorick v. Bruce 606 V. Townsend 395 Short V. Bryant 399 Sinkleru. Turnpike Co. 406, 410 V. McCarthy 14, 176, 852, 449, 452, Sirdfield v. Price 499 469, 484 Sitgreaves v. Bank 69 Shortredge v. Check 269 Skeffington v. Whitehurst 15 Shreve v. Joyce 481, 488 Skidmore v. Little 869 Shreves v. Leonard 606 V. Romaine 96 Shriver v. Shriver 669 Skillington v. Allison 746 Shuber v. Suter 197 Skinner v. Crawford 624, 660 Shubrick v. Adams 3 V. Kilbys 431 Shucraft v. Beard 323 V. Skinner 500 ShuflBeton v. Nelson 694 V. Smith 548 Shultz V. Carter 899 Slack V. Norwich 238 V. Elliott 670 Slade's Case 6,77 Shumate v. Williams 299 Slark V. Starr 649 Shutford !>. Borough 325 Slater v. Commonwealth 40 Shutts V. Fingar 314 V. Jepherson 626, 681 Sibbering v. Baloarras 185 V. Rawson .434 Sibert v. Wilder 241 246, 247 Slater Mut. Fire Ins. Co., Re 865 Sibley v. Ellis 463 Slaughter v. Fowler 637 V. Lambert 190 291, 299 Slaymaker v. St. John 513 V. Phelps 304, 310 V. Wilson 62,66 Sibly V. Stuhl 402 Sledge V. Clopton 579 Sicard v. Davis 25 Slee V. Manhattan Co. 646 551,652,569 V. Whale 32 Sleeth V. Murphy 40 Sichel V. Carrello 546 Sleyht V. Kane 352, 692 Sickles V. Ayres 295 Slicer v. Pittsburgh Bank 546, 552 V. Mather 714 Slingluff V. Ambler 120 Sidwel! v. Mason 182, 183 236, 237, 239 Sloan V. Sloan 185 Sigoumey v. Drury 179, 256, 259, 289, Sluby V. Champlin 217, 2.35 805, 400, 726, 731, 732 Small V. ClifiEord 6T2 V. Severy 877 Smallwood v. Smallwood 166, 197, 207, V. Wetherell 301 212 Sikes V. Quick 395 Smead v. Williams 111 Silsby Manuf . Co. v. New York State 457 | Smeidel v. Llewyllyn 403 Simmons v. Lane 638 Smiley v. Fry 388 V. Nahant 628, 656, 682 Smith's Estate 478, 478 TABLE OP CASES. Ixxvii Smith V. Acton 502 Smith V. Shaw 311 V. Ay les worth 369 V. Simmons 292 703 V. Simms 272, 288, 304 V. Burtis 24, 629, 644 190 V. Caldwell 732 V. Slocumb 683 633 0. Smith 89, 499 u. Camp 262 V. Spinola 32 V. Cassidy 120 V. Strahan 513 V. Chapin 686 , 695, 696 V. Talbot 226 V. Charter Oak Ins. Co . 11,12 V. Thome 179, 181, 182, 236, 260 V. Clay 136 .151, 160, 161, 509, 400 532 V. United States 116 281 V. Washington City, &c . R. R. V. Crosby 34 Co. 408, 546 V. Dreigert 28 V. Westmoreland 259, 272, 276, V. Dunham 377 291, 307 V. Eastman 232, 238, 289, 261, 263, V. Wheeler 505 267, 280 V. Wilson 352 V. First National Bank 389 V. Winter 724 V. Fiske 441 V. Woods 74, 298 V. Fly 185, 210 V. Woolfolk 549 — — V. Forty 716 Smith's Executrix v. Washington 141, 144 City, &c. R. R,. Co. 61 V. Fox 336 Smyth V. Bythewood 316 V. Freel 166 189, 216 Suavely v. Pickle 555, 566 697 Snoddy v. Kreutch 622 529 Snodgrass v. Andrews 650 V. Hayward 394 Snook V. Mears 268 V. Healy 32 Snow V. Booth 502 626 Snyder v. Castor 76 V. Humphrey 41 Society, &c. v. Pawlet 623 V. Hutchinson 28 V. Whitcomb 740, 743 V. Ida 402 Society for the Propagation of the V. Jackson 630 Gospel V. Wheeler 8,42 — - V, Kensington 500 Sohn V. Watterson 37, 42, 311 V. King 505, 517 Solinger v. Earle 398 V. Lee 622 Solomon v. Bank of England 63 V. Leeper 197, 228 V. Dreschler 295 V. Lockwood 86 Somerset Co. v. Veghte 605 V. Lorrilard 644 Somersworth v. Roberts 568 V. Ludlow 301, 729, 736, 738 Somerville v. Trueman 649 ». McCurdy 666, 668 Sommer v. Pacific R. R. Co. 141, 144 V. Miller 467 Sorber v. Willing 678, 684 V. Morrison ' 40 Sorrell v. Craig 303 660, 663 Sothoron v. Hardy 186 . V. Moulton 198 Soule V. Barlow 626, 627,630,664,683 V. Newby 13, 469 South V. Thomas 602 —- — V. Paterson 311 Southard v. Brady 145 V. Pocock 532 V. Central R. R. Co , 37 V. Poole 267 Southern Ex. Co. v. Caperton 108 V. Porter 187, 244 V. Hunnioutt 108, 109 V. Remington 89 Southgate v. Chaplin 430 V. Ricordo 530 South School District v. Blakeslee 649 V. Ruecaster 714 South Sea Co. «. Duncomb 69 V. Ryan 215, 300, 301, 302 ■■ V. Wymonsall 52, 55, 136, 704 V. Sackett 513 Southwick V. First Nat, Bk. 381 Ixxviii TABLE OF CASES. Souzer v. De Meyer 56, 500 Stark V. Fuller 403 Spangler v. Spangler 241 V. Hunton 478 Spann v. Fox 528 Starke v. Cheeseman 359 Sparhawk v. Buel 89, 500 478 V. BuUard 634 V. Starke 630, 600, 603 Sparrow v. Hovey 625 Starr v. Starr 506 Spaulding v. Andrews 368 Starry v. Starry 698 I'. Earwell 73, 141, 148, 149 Start V. Mellish 24,603 Speake v. Sheppard 77 State V. Arledge 109 Spear v. Curtis 746 V. Blackwell 520 V. Green 427 V. Cincinnati Gaslight Co. 631 V. Newell 134, 746 V. Clark 40,43 Spears v. Hartley 62, 172, 546, 559 V. Corlies 280 Speidel v. Henrici 151 509, 512 V. Crutcher 478 Spencer v. Falls Turnp. Co. 161 V. Fleming 109 158 V. Gasconade 122 V. Mariott 432 V. Giles 708 V. Weston 699 V. Groome 740 Sperry v. Moore 721 V. Jacobs 130 Spickernell v. Hotham 269 V. Joiner 109 Spitter V. Schofield 635 V. King's Co. 112 Spong V. Wright 195, 196 197, 265 V. Ladd 33 Spoor V. Wells 135 139, 511 V. Laval 540 Spotswood V. Dandridg 3 506, 514, 533 V. Layton 581 Sprague v. Baker 434 V. McGowen 504 V, Hazelwinkle 298 V. Mclntire 28 V. Norway 130 V. Miller 418 V. Sprague 383 V. Minor 413 Sprecker v. Wakely 41,45 V. Pasey 24 Spruill V. Sanderson 141, 144 V. Pratt 111 Stackhouse v. Barnston 84, 133 V. Ragland 542 Stafford v. Bryan 135, 195 196, 511 V. Schnierle 122 V. Richardson 207 216 336, 731 V. Shires 529 Stagg V. Eureka Tanning Co. 667 V. Spencer 28 Stahlsmidt v. Lett 474 33 Staight !'. Burn 466 V. Thomas 298 Stallsworth v. Pressler 395 V. Vreeland 41,42 Stamford v. Tuttle 315, 340 V. Yellow Jacket Silver Mining' Stamper v. Griffin 649 Co. 117 V. Johnson 569 State Bank v. Baker 743 Stamway u. Rook 517 111 Stanbaugh v. Snoblin 41 II. Corwith 57 Stanley v. Hayes 431 V. Gibson 478 V. Stanton 708 V. Moody 272, 292 634 V. Vance 478 V. White 674 V. Waddy 190 Stannard v. Eldridge 434 V. Walker 478 Stansbury v. Stansbury 262 V. Wood 292 Stansfleld v. Hobson 552 State Treasurer v. Weeks 109 Stansford's Case 483 Station v. MuUett 684 Stanton v. Blossom 369 Steamboat Co. u. Barclay 39 V. Stanton 230, 315, 318, 322, 864 Steamboat Mary Blane 120 Stanway v. Rock 517 Steamer Co., Ee 869 Staples V. Spring 457, 459 Stearns v. Brown 361 V. Staples 340 666 Starett v. Barber 298 V. Page 532, 707 TABLE OP CASES. Ixxix Stearns v. Stearns 186 Stockett V. Watkins 60 Steokel's Appeal 41 Stocking V. Hunt 42 Steel V. Henry 529 Stocks V. Van Leonard 704 V. Johnson 654, 655, 697 StockweU V. Coleman 81,86 V. Smith 81 V. United States 75 V. Steel 249,473,568 Stodard v. Doane 10, 217, 261, 282, 28^ Steele v. Adams 556 Stokes V. Berry 620 228, 731, 737 t>. Lebanon, &c. Turnpike Co. 148 V. Souder 733 Stone V. Hammett 395, 398 V. Soule 726 377 179, 181, 186 V. Rogers 252, 253 115 Stoops V. Delvin 667, 672 Steen v. Niagara Ins. Co. 100 Storer v. Haskell 298 V. Wadsworth 670 Storm V. United States 26 Steeple v. Downing 688 Story V. Fry 608 Steere v. Steere 513, 514 V. Gape 635 Stein V. Burden 466 V. Saunders 672, 685 Stener v. Lamoure 57 Stoughton V. Baker 109, 113 Stephen v. Yandle 533 Stout V. Gallagher 77 Stephens v. Dewing 629 • V. Marshall 202, 262 V. Downey 335 V. Merrill 666 V. Leach 677, 684 V. Vanse 396 V. McCormick 652 Stow V. Brown 709 Stephenson v. Stephenson 353 Stowell V. Zouch 17, 575, 580, 603, 640, 646 Stevens v. Bonar 576, 600 Stoyle V. Westcott 60 V. Brooks 638 Strahn's Appeal 426 II. Dedham Inst. 564 Strange v. Durham 624 V. Fisher 589 Stratton v. Dialogue 537 V. Hewitt 213 Strawn v. Hook 273 V. HoUister 634, 657 Streater v. Jones 569 V. Taf t 690 Strickland v. Walker 179, 185 V. Union Trust Co. 148 Strike's Case 517 V. Winship 640 Strike v. McDonald 517 Stevenson v. MoReary 602 Striker, Ex parte 426 V. Robinson 712 Strimpfler v. Roberts 513 Stewart's Appeal 716 Strode v. Blackburn 63 Stewart v. Chadwiok 523 V. Seaton 665 V. Drake 429, 432 Stroehel v. Large ; 87 V. Durett 325 Strong V. Burchard 130 V. Garrett 262 i). Cotter : 672 V. Harris 674 V. M'Connell 288 V. Keith 411 V. McCormick 190 ». Kerr 74 V. Smith 593 V. Kohn 11 V. Stewart 569 V. Shelden 10 Strough V. Supervisors 392 V. Spedden 488 Stuart V. Foster 245, 282 Stiles V. Easley 12 Stubblefield v. Borders 624 V. Hooker 466 Stubbs V. Ripley 584 Stillman v. White Rock Manfg. Co. 467, Stump V. Henry 666, 685 478, 623 Sturdy v. Henderson 317, 320 — — V. Young 479 Sturffes V. Burton 26,96 Stillwell V. Coons 2 Sturgis V Crowningshield 39, 546 Stilphen v. Ware 404 V. Darrell 486, 493 Stine V. Bennett 44 V. Morse 706 Stipp V. Brown 41, 44, 45 V. Preston 380 Stockett V. Sasscer 212, 228 Sturtevant v. Waterbury 60 Ixxx TABLE OP CASES. Sturton V. Richardson 73 Talony v. Jackson 85 Sublette v. Tinney 704 Tamplin ». Diggins 63 Sugar River Bank v. Fairbank 135, 477, Tankersley v. Childers 60 479 Tannard v. Little . 538 Sullivan v. Fosdick 386 Tanner v. Kellogg 664 V. Halker 178 V. Smart 177, 182, 186, 191, 196, 205, V. R. R. Co. 160, 509 230, 233, 241, 250, 252, 253, 263, 449, 498 Sumatt V. Homer 235 Tapling v. Jones 466 Summerville v. Halliday 80, 426 Tappan v. Burnham 632, 633 Sumner v. Stephens 654 310 !'. Sumner 261 TarbeU u. Parker 11 479, 480 Sumter v. Morse 714 Tarbox v. Adams County 25 Susquehanna, &c. R. R. Co u. Quick 672, Tasker's Lessee d. Whittington 643 686 Tassell v. Lewis' 370, 371 Suter V. Sheeler 185, 212, 215 Tatam v. Williams 525 Sutton V. Burru8s 197, 198 Tate V. Clements 726, 733 V. Loomer 317, 320 V. Greenlee 167 Suydam v. Jones 438 240 Swallow, The 25 Tattenhall v. Parkinson 294 Swan V. Lowell 192 Taylor v. Barnes 422 V. Sowell 260 V. Bates 339 Swann v. Sewell 189 K.. Blair 533 Swart V. Service 569 687, 697 Swasey v.. Little 58 V. Carpenter 162 Swazey v. Allen 377 V. Cheever 69 Swearingen v. Harris 601, 713 ■ — — V. Delancey 22 13,23 V. Gould 722 V. United States 109, 114 V. Hawkins 68 Sweat V. ArringtoQ 505 V. Hendrie 286 Sweet V. Franklin 231 V. Horde 628 V. Hentig 288, 718 121, 369 V. Irish 854, 440 V. Kilgore 419, 518 V. Jeffries 744 569 V. Southworth 51 V. McClain 564 Sweetser v. Lowell 543 V. McDonald 190 307, 714 Swettenham v. Leary 662 V. McMurray 133 Swickard v. Bailey 42 V. Morrison 525 Swift V. Dean 666, 668, 672 V. Needham 665 V. Raymond 73,74 V. Priest 812 120 V. Public Hall Co. 680 ' V. Whitnej? 67 V. Rowland 314, 411 Swindersine v. Miscally 508 295 Switzer v. Noffsinger 145, 195, 262, V. Spears 340, 524 Sykes v. Summerel 76 V. Spicey • 176 Sylvester v. Downer 401 V. Stedman 181, V, Whitman «. Witman 185 225, 232 353, 356 316 T. Tazewell v Whittle 25, 226, 481 Tazewell Co. o Davenport 593 Taft V. Stephenson 481 Teabout v Daniels 630 Taggart v. Stanberry 623 Teackle v Gibson 132 V. Western, &c. R, R. Co. 883 Teall V. Slaven 702 Talbot V. Braddil 554 V Syracuse 393 V. Todd 533 Tebo V. Robinson 233, 312 Taliafero v. Taliafero 514 Teesen v. Camblin 265 Tallman v. Met. El. R. R. 162 Telfener v. Dillars 152 TABLE OF CASES. Ixxxi Ten Eyck «. Richards 659 Thompson v. Gotham 635 — — V. Wing 17£ , 181, 226 V. Hopper 714 Tennessee Bank v. Hill 708 80 Tenneston v. Brookline 312 88 500, 520 Tenney v. Hemenway 746 V. Milford 679 Tenny v. Sandborn 57 217 230, 253 Teroop v. Combe 356 V. Parker 28 Terry v. Anderson 88, 404 V. Patton 569 V. Kosell 540 -^— V. Peters 187, 208, 211 482,-483 1». Sickles 721 V. Phelan 298 Teulon v. Curtis 552, 554 37,38 Tewksbury v. Magraff 664, 667 V. Stevens 394 Tharp v. Tharp 721 V. Tioga, &c. E. R Co. 33, 599 Thatcher v. Hope Cemetery Assn. 327 V. Vanbeek 127, 128 Thayer v. Cramer 505, 540 527 394 Thoreau v. Pallies 656 V. HoUis 478 , 475i 479, 480 Thorn o. Moore 288 V. Mann 61 , 171, 645 Thornton v. Boyd 131 V. Mills 208 V. Crisp 185, 2-26 Therbold v. Stinson 720 190 Theriat v. Hart 22 Thorogood v. Robinson 469 Thibodeau v. Levasseur 30,83 Thorp V. Raymond 19 599 ,600, 603 Tliistle V. Frostburg Coal Co. 682 V. Thorp 132 Thomas v. AflSick , 122, 123 Thorpe v. Booth 315, 317 318, 3^0 V. Babb 630 322 V. Brinsflield 507 V. Corwin 9,581 V. Floyd 504 Thrall V. Mead 315, 318, 322, 353, 362 V. Harvie 134 864, 365 V. Hooper 714 Thrash v. Sumwalt 478 V. Hunter 254 Thurlow V. Gilmore 298 V. Machir 575 Thurraan v. Slielton 312 — ^ i>. Merry 629 Thurston v. Blackistbn 419,439,455,456 673 V. Lowder 478 V. Premium Loan Ass' n 123 159 V. Shoemaker 180 V. Wolfhorough Bank 375 V. Thomas 78, 471 Thyer v. Society 066 V. Walker 514 Tibbetts v. Pilton 514 V. White 133, 134, 505 Tichenor v. Colfax 166, 184 187, 214 V. Woods 403 Ticknor v. Harris 135, 477 Thompson, Re 593, 596 Tiernan v. Resoariere 132 Tliompson v Afflck 25 Tilden, Re 490 V. Alexander 40,44 Tilghman v. Little 671 ' V. Babb 661 Tillett V. Commonwealth 175 D. Bank of British North A merica V. Linsey 181 381, 382 Tlllinghast !>. Nourse 288 •; D Bank of North America 53 Tillotson V. Doe 666 505, 506, 529 V Rose 398 V. Brown 475 Tillson V. Bowley 130 v. Burhaus 659, 675, 677, 679 709 V. Central Bank 413 Tilton V. Swift 38 V. Cragg 601, 634, 636 Timmis v. Piatt 4S5 V. Craig 601 Tindall v. Carson 76 V. Felton 650 V. McMillen 417 V. Fisher 719 Tinlay v. Cook 634 V. French 194, 197 Tinnen u. Mehane 607, 531 V. Gordon 329 Tippets V. Heane 273, 278, 288 f Ixxxii TABLE OP CASES. Tippin V. Coleman 23 Tipping V. St. Helen Smelting Co. 464 Tisdale v. Essex 429, 430 V. Mitchell 383, 385 Tison V. Yawn 668 Titcomb v. Morrill 514 Titman v. Titman 332 Tobacco Co. v. Loder 55 Toby V. Allen 489 Todd's Appeal 744 Todd V. Rafferty 527 Toland v. Spring 714 Tomes v. Barney 589 Tomkins v. Wiltshire 73 Tompkins v. Brown 232, 233 V. Hale 468 V. HoUister 702 V. Snow 666 Toomes v. Conset 554 Topham v. Braddick 322, 339, 340, 350, 524 Toth V. Stephenson 556 . Toulandau v. Lachraeyer 30, 31, 33 Towers v. Hayner 581 Towle V. Ayer 618 Town V. Butterfield 666 Townes r. Ferguson 481 Townley v. Denison 721 Townsend v. Deacon 486 V. IngersoU 487 V. Jameson 29, 30, 36 V. Jennison 30, 545 Tracey v. Atherton 467 Tracy v. Newell 195 V. Norwich, &c. R. R. Co. 632 Traer v. Clews 706 Trafton v. Hill 23 Trammell v. Salmon 207 Traphagen v. Jersey City 161 Trapnall v. Burton 685 Travers v. Dyer 74 Trayser v. Trustees 550 Treadway v. Treadway 193 Treadwell v Moore 295 Trecothick v. Austin 522 Trent v. Hunt 541 Trentham v. Deverill 277, 299 Trim ii. McPlierson 2, 609, 610 Trimble v. Thorn 314 Trimm v. Marsh 642, 543 Trimyer v. Pollard 722, 723 Tripe v. Marcy 564 Tripp V. Curtenius 316, 389 Tritt V. Roberts 674, 677 Trott V. West 478 Trotter v. Erwin 61, 546, 558 V. Trotter 474 Troup V. Smith 133, 137, 138, 416, 605, 702, 703 Trousdale v. Anderson 241, 246 Troy V. Cheshire R. R. Co. 458, 459, 460, 461 Trucks V. Lindsey 569 Trueman v. Fenton 173, 217 TruUinger v. Kofoed 296 Trumbull v. Stroecker 714, 719 Trustees v. Osgood 292 V. Rowell 377 V. Smith 353 Tryon v. Musson 542,549 Tucker v. Baker 4 y. Harris 38 V. Ives 714, 719 1\ Newman 467 V. Randall 360 V. Tucker 354, 510 V. White 440 V. Wilson 68 Tuckerman v. Brown 407 Tuckey v. Hawkins 325 328, 445 Tufts V. Carradine 119, 120 V. Tufts 746 Tullis V. SeweU 85 TuUock V. Dunn 487, 488 V. Worrall 692 Tunstall v. Pollard 473 Turkey v. Hawkins 328 Turlock V. Roby 566 Turman v. White 681 TurnbuU v. Gadsden 704 V. Stroecker 719 Turner v. Crisp 304 V. Debell 505 V. Hall 627, 6§3 V. Lambeth 81 V. Martin 216, 244 831, 383 V. Ross 288 531 Turney v. Dodwell 190 300, 302 Tusen v. Camblin 240 Tuttle V. Wilson 699 Tyler v. Nelson 74 467 V. Winslow 83 Tynan v. Walker 488 Tyson v. Britton 10, 600 602, 519 u. mine V. N. Y. C. & H. R. R. Co. Underbill v. Mobile Ex. Ins. Co. 152, 153 312 TABLE OF CASES. IxxxiiL Tlnderhill v. Sonora Underwood v. Dugan Union Bank v. Forrest V. Foster V. Knapp 386, V, Stafford 863 151, 157 131 303, 810 411, 714, 718, 720 137, 142, 146, 546 Union Hotel Co. v. Hersee 593 Union Nat. Banlc ». Evans 262 Unitarian Society v. Woodbury 513 United States v. Arredondo 643 V. Alliens Armory 540 V. Ballard 48 y. Bank of Metropolis 115 r. Barker 115 V. Beebe 111 V. Beverley 533 V. Bougher 76 V. Bradbury 295 V. Buford 110, 114, 115 V, Colt 76 V. Dallas Military Road Co. 115, 158 V. Daniels 142, 146, 410 V. Davis V. Des Moines Nav. Co. V. Donelly V. Hoar V. Howland V. Insley V. Kilpatrick V. Knight ti. Maillard V. Muhlenbunk V. Nashville, &c. R. R. Co. 115 111 29 114, 115 705 115 115 115 12, 607 607 111, 112, 114, 115 115 399 39 4,115 V. Nichols V. Preston V. Samperyac V. Thompson 1>. Wallamet Wagon Road Co. 159 V. White 110, 116 V. Wilder 272, 292, 733 «. Williams 114 United States Bank v. Daniel 133, 380 V. McKenzie 111, 115 United States Ex. Co. v. Harris 108 Updike V. Ten Broock 740 Upham V. Wyman 518 Upton V. Else 264 V. Mason 28 V. M'Laughlin 26 V. Steele 28 Urton V. Hunter 83 Utica Bank I'.Ballou 272, 277, 281, 290, 738 !'. Childs 455 V. Van Gieson 880 Utica Ins. Co. v. Bloodgood 228 Vail V. Junction R. R. Co. 436 Valentine v. Cooley 695, 696 Valet V. Herner 429 Vallandigham v. Huston 588 Van Alatyne v. Lemons 81 Vanbibber v. Bierne 701 Van Bibber v. Frazer 672, 673 Van Blarcom i'. Frike 649 Van Block v. Whitlock 405 Van Brocklin v. Tennessee 116 Van Buren v. Olmstead 569 Vance v. Grainer 607 Vancleave v. Milliken 636 V. Wilkinson 641 Vanderkemp v. Shelton 403 Vanderzee v. Willis 63, 68 Vandesande v. Chapman 369 Vandever v. Vandever 470' Van Dike v. Van Dike 27 Van Dorn v. Bodley 33- Van Gorden v. Jackson 690 Van Hook v. Whitlock 40, 329- Van Horn v. Scott 330 Van Houten v. Van Winkle 159- Van Keuren v. Parmalee 727, 732, 733, 734, 735, 736- Vanmaker v. Van Buskirk 437 Van Nest v. Lott 413 Van Rensselaer v. Livingston 4 Van Rhyn v. Vincent 134, 505, 506 Van Slyck o. Kimball 430 Van Vleet w. Sledge 160' Van Wagoner i: Terpenning 584 Vardeman v. Lawson 537" Varick v. Edwards 150, 536- Varrick v. Jackson 619- Vason V. Ball 541 Vasse V. Smith 60' Vasser v. Vasser 568 Vaughan v. Hankinson 305 Vaughn v. Moliawk Ins. Co. 484 Veazie v. Penobscot R. R. Co. 456 V. Williams 150 Veazie Bank v. Winn 369 Veehte v. Brownell 84 Ventris v. Shaw 181, 198 Vernon v. Bethell 554, 566 Vernon County v. Stewart 175 Vesey i'. Williams 706 Vickery v. Benson 687 Viets u. Union Nat. Bk. of Troy 390 Vieus r. O'Bannon 712 Village Bank r. Arnold 376 Vina V. Burrill 781 Jxxxiv TABLE OP OASES. Violett V. Sympson 454 Walker v. Walker 56, 508, 510, 633 Virgin v. Land- 685 V. Walton 226 Virginia Bank v. Adams 408 V. Warfield 377 Von Wickle «. Garrett 607 V. Wilson 618 Vose V. Woodford 26 V. Witter 51, 80, 81 Vrooman v. Shepherd 649 Wall V. Robson Wallace v. Agry V. Duffleld 4 51, 357 629 w. V. Fletcher 467 633 Wachter v. Albee 179 246 V. Miner 109 Wade V. Doyle 23 V. Stevens 567 Wadsworth v. Loranger 569 WaUbrun v. Batten 662 Waffle V. Short 714 Wallen v. HufE 552 Wagar v. Stone 540 Waller v. Lacy 195, 720 Waggoner v. Hastings 634 Wallingford v. Hearl 640 Wagner v. Baird 150 509 531 532 Walls V. Mason " 671 V. T>ntfy 121 V. McGee 111 Wagstaflf V. Smith 538 V. Smith 642 Wainman v, Kynman 198, 241, 271, 273, Walmsley v. Milen 541 276 278 290 Walnut V. Wade 364 Wait V. Richardson 673 Walradt «. Maynard 340 Wakeman v. Koach 698 Walsh V. Chic. &c. R. E. Co 311 V. Sherman 167, 185, 212, 234, V. Hill 628, 683 274 V. Ger. Am. Bank 382 V. Walker 428 V. Mayer 222 Walden v. Bodley 664 666 Walter v. Lacy 196 V. Gratz 3,18 ». Radcliffe 473 730 735 Waltermire v. Westorer 546 Waldo V. Rice 549 651 567 Walters v. Kraft 280 ■Waldron, Re 312 K. McBee 354 V. McCarty 430 Waltham Bank v. Wright 477 V. Tuttle 634 Walton V. Cronly 669 Wales V. Smith 637 642 V. Hele 429 "Walker v. Albee 241 620 V. Bank 41 V. Robinson 288, 289, 737 V. Birch 62 Walworth v. Routh 31,34 V. Bradley 411 Wambold v. Hoover 661 V. Butler 282 ,295 Wamburzee v. Kennedy 505, 629 V. Byers 478 Wankford v. Wankford 480 V. Campbell 187 Wanmaker v. Van Buskirk 132, 134, 424 V. Cheerer 74 ,135 477 ,478 Waples V. Layton 179, 198, 216 V. Clements 130 722^, 723 Ward V. Carter 556 V. Cruikshanks 236 ,481 V. Cole 688 V. Fleming 28 V. Dulancey 469 333 V. Hallam 33 V. Griggs 198 V. Harvey 629 V. Hill 311 V. Henry 394, 399 V. King 541 V. Hunter 240, 484 V. Lathrop 394 V. Kilts 39 V. Mississippi Bank 43 670 V. Peay 746 ,747 499 V, Reeres 543 V. Ruder 519 — ^ V. Robinson 3,4 V. Smith 630 V. Smith 164 V. Tyler 525 V. Wait 739 V. Walkers 28 TABLE OP OASES. Ixxxv Ware v. Bennett 445 Watts V. Coffin 643 V. Green 109,111 681 17. Hervey 317 V. Gunn 12, 23 634 Waugh ». Cope 271 275, 279, 294 V. Manning 714 Waul V. Elirkman 383 "Warfleld i;. Fox 604 Way V. Cutting 702, 712 V. Lindell 609 V. Wakefield 77 Warlick v. Peterson 209 Wear v. Skinner 711, 712 Warn v. Biokford 431 Weatherhead v. Bledsoe 109 Warner v. Bull 689 -Weatherwax v. Cosumnes 716, 721 V. Callender 83 Weaver u. Weaver 216, 219 V. Daniels 144, 147 V. Wilson 629 V. Rising Fawn Iron Co. 862 Webb V. Alexander 428, 430 Warren v. Chapman 378 V. Carter ■ 193 V. Ciiilds 629 V. Elmore 484 V. Granville 303 V. Patterson 568 V. Perry 207, 226 V. Rice 569 V. PofE 476, 483 V. Richardson 628 — '- V. Rogers 88 V. Sturtevant 634 V. Sweeney 719 Webber v. Cochrane 211 V. Walker 228 V. Davis 468 Washabaugh ». Entriken 629 658, 680 V. Williams College 373 Washburn v. Cutter 622, 630, 631, Weber v. Anderson 696 683 V. Manning 44 w. Merrill 569 Webster o. Byrnes 715, 716 V. Pond 66 V. Cooper 40 Washington v. Conrad 666 V. French 523 "Washington Market Co. v. Beckley 218 V. Kirk 818 368, 373 Watchman v. Crook 67 V. Newbold 26, 27, 185 212, 262 Waterman v. Burbank 299 e. Webster 15, 133, 489 494, 495 V. Younger 296 520 Waters v. Earl of Thanet 229 264, 817 We'dderburn v. Wedderburn 89, 499, 504 V. Tompkins 277 ,291 294, 805 531, 532 V. Travis 537 Weed V. Bishop 7 Waterson v. Kirkwood SSV Weeks v. HuU 122, 123 Watkins v. Harwood 134, 722 V. Weeks 66 ^ V. Peck 467 Weir V. Express Co. 109 c. Stevens 184, 232 Weiser v. Hade 39 Watson V. Alexander 664 Weisinger v. Murphy 638 — V. Brewster 31 Weisman v. Smith 626 V. Cambridge 56 Weiss V. Munch Chauk Ins. Co. 76 0. Dale 307, 309 Weisser v. Dennison 382 V. Dickens 569 Welborn v. Weever 580 V. Forty-Second St. R R. Co. 456 1 Welby V. Phinney 59 V. Kelly 581 Welch V. Sykes 80 V. Lane 671 Weld V. Hornby 466 V. Phenix Bank 64,886 Welden v. Davis 424 V. Saul 502 Weldon v. Buck 359 V. Stein 208, 215 Wellborn v. Anderson 634 V, Stern 194, 211, 212 V. Finley 601 i>. Tindal 656 V. Rogers , 530 V. Watson 579 Weller v. Fish 139, 143 V. Woodm?ji 54, 527 Welles V. Graves 158 Watt I'. Hoch 295 Wellman v. Lawrence 475 V. Trapp 468 Wells V. Cliild 604 Watts V. Beall 700 V. Fish 702 Ixxxvi TABLE OP CASES. Wells V. Halpin 702 Whipple V, Stevens 272, 276, 288, 726, 566 733, 734, 739 V. Jackson Manfg. Co. 625 Whippy V. Hillary 242, 265, 269 314 Whitbeck v. Cook 430 V. Morse 134 Whitcomb v. Whiting 400, 443, 726, 728, V. Prince 640 729, 730, 731, 738 735, 786, 737 K. Pyle 219 White V. Brooklyn 419 V. Ragland 470 V. Crutcher 121 V. Washington 4 V. Ewer 547, 552 V. Wilson 261 262 V. Hampton 721 Welman, Re 119 V. Hopeman 650, 662, 664 Welsh V. Phillips 540 V. Jordan 198, 272, 280 Wenman v. Mohawk Ins. Co. 301, 816, V. Knox 404 318, 320, 822 353 356 V. Latimer 20, 599 601, 602, 603 Wesley Church v. Moore 394 V. Leavitt 507,530 Wessner v. Stein 215, 272 V. Methodist Church 139 West V. Creditors 517 607 V. Parkin 77 V. Lanier 684 V, Patterson 157 V. Randall 150 V. Pendry 132 V. Rice 414, 415 V. Poussin 704 V. Sloan 504 V. Reagan 335 V. Stewart 438 V. Rittemeyer 642 West Branch Bank v. Moorehead 296 V. Sheldon 139 Westbrook v. Beverley 226 V. Smith 353 Western R. R. Co. v. Avery 366, 405, V. Trumbull 298 406 V. White 507 Western Union Tel. Co. v. Judkins 161 V. Wieland 58 Westfall V. Westfall 699 672 Westminster Bank v. White 568 White's Bank v. Ward 316, 353 V. Whyte 569 Whitehead v. Howard 176,- 336 Weston V. Ames 413 V. Lord 325, 383, 334 136 V. Walker 358, 372, 373 262 Whitehouse v. Fellowes 378, 454, 461, Wethan's Estate 211 ,215 ,254 463 Wetherell v. Joy 295 White Mountain R. R. Co V. Bay Wetmore v. Woodbridge 74 State Iron Co. 66 Wettig V. Bowman 691 Whitesides v. Singleton 641 Wetzell V. Bussard 180, 187, 207, 208, Whiting V. Cox g67 211, 216, 221 ,229 ,230 V. Dew^y 672 Weymouth v. Gile 324 V. White 566, 568 Whalin V. White 669 Whitlock V. Underwood 354 Whalley i>. Small 627 Whitman v, Gaddy 395 Whedbee v. Whedbee 533 41 Wheelei- v. Bates 619 Whitmore v. Adams 82 V, House 297 V. Foose 478 V. Lewis 403 V. Shiverick 540 V. Moody 685 Whitney v. Batchelder 569 V. Piper 530, 534 V. Bigelow 167, 187, 200, 202, 203, V. Spinola 676 207, 220, 232, 240, 292, 301, V. Stone 632 ,633 304, 807 V. Warner 316 ,353 424, 445, 556 V. Webster 597 V. Stevens 679 Wheelock v. Doolittle 726 ,731 V. State 489 671 V. Wright 649 Whipple V. Blackington 285 296,801, Whitrick v. Kane 569 ' 328 Whittaker v. Grover 295, 296 TABLE OF CASES. Ixxxvii Whittington v. Flint 548 Williams v. Granger 402 V. Wright 657 V. Griffith 197, 264, 720 Whitwell V. Brigham 69 V. Gunn 167 Wliitwortli V. Ferguson 44 V. HoUingsworth 514 Wiclcersliam v. Lee 55, 338, 702 V. Innes 243 Wickes V. Lalie 627 V. Jones 5,608 625 V. McAliley 696 WiclslifEe v. Ensor 687, 697 V. Moyston 450 Wicklow V. Lane 681 V. N. Y. Cent. R. R. 154 Wiggin u. Peters 122 V. Otey 522 Wiggins V. Holley 628 V. Presbyterian Society 531 V. Levering 477 V. Reed 58 Wiggle 0. Owens 11 V. Sherman 76 V. Tliompson 369 V. Taylor 406 Wilber v. Jewett 510 B. Vermont Mut. Ins. Co. 99 Wilborn v. Weever 600 V. Wallace 631, 686 Wilby V. Elgee 236 V. Williams 51, 615 Wilcombe v. Dodge 369 V. Winans 368 Wilcome v. Upton 466 Williamson v. Farrow 130 Wiloocks V. Huggins 13, 485 V. Field 40 Wilcox V. Fincii 4 499, 520, 521 V. Pearnon 304 V. Wardlaw 744 V. Pluramer 452, 455, 456 Willington v. Brown 665 V. Williams 194, 211, 225, 258, 263, Willis ti. Ne wham 277,290 291, 292, 299 271 Willison V. Watkins 665 Wilder v. Clough 627 Willmott V. Jenkins 519 V. Secor 606 Willoughby v. George 41 Wilhoit V. Hancock 471 V. Spear 89 Wilkes V. Elliott 623 Wills V. Gibson 330, 426 Wilkin V. Wilkin 344 V. Watkins 512, 530 Wilkins v. French 542 V. Willson 72 Wilkinson v. Dunn 575 Wilmerding v. Russ 56, 504, 508, 536,576 V. First National Fire Ins. Co. 106 Wilson, Ex parte 541 V. Flowers 426 544, 546, 550, V. J&tnn Ins. Co. 99, 106 555 V. Anthony 132, 147 33 V. Balfour 63 V. Nichols 648 V. Betts 24,580 V. Sherman 151 V. Brookshire 529, 710 378 V. Callinshaw 673 Wilks V. Robinson 316, 353 568 Willard v. Clarke 39, 517 V. Green 509 V. Dorr 78 23 40,42 V. Henry 689 V. Willard 504 V. Hudson 109 Willets V. Phenix Bank 379 V. Ivey 702 703, 712 Willett V. Willett 60,61 V. James 672 Williams w. Annapolis 693 V. Kilcannon 24, 601 V. Beard 542 V. Mandeville 719 —- — V. Bemis 58 V. McEwan 625 632, 660 V. Burrell 432 V. McLenoghan 699 V. ChafHn 478 V. Pope 304 V. Council 6.38 V. Richards 569 665 25 V. Durst 871, 372, 898 V. Williams 369 V. Finney 198 512 530, 665 V. GoJley 291, 299 V. Wilson 152 440, 579 Ixxxviii TABLE OF CASES. Wilt V. Buchtel 28 Wood V. Gault 721 Wilton V. Girdlestone 469 V. Gee 58,77 Wimmer v. Ficklin 667 V. Goodfellow 557 Winburn v. Cochran 1,470 V. Jones 664 Winchell v. Hicks 244, 281, 283, 738 V. Leland 395 V. Smith 738 V. Myrick 417 Winchelsea Case 425 V. Ricker 89, 600 Winchester v. Ball 566 V. Turner 667 Windsor v. China 122, 123 V. Veal 467 Wing V. De la Rionda 745 80 W.Hall 689 V. Wood 133, 134, 140, 604 Wingate v. Pool 478 V. Wyldg 196, 282 Wingfieldw. Virgin 522 V. Wylks 292 Winnepisogee Co. v. Young 468 Woodbridge v. Allen 196, 267 Winser v. Barnet 56 V. Austin 33 Winship v. Hudspeth 467 V. Brigham 122 Winston v. McCormick 40,41 V. Planters' Bank 522 Winter v. Muscogee K. R. Co. 407 V. Wright 32 V. Stevens 655 Woodbum v. Parmers,' &c. Bank 426 Wintermire v. Westover 88,89 Woodbury v. Long 468, 470 Wintertown v. Winteiton 198 V. Shackleford 605 Wires v. Farr 41 Woodbury Savings Bank v Charter Wisecarver v. Kincaid 25 Oak Ins. Co. 99 Wisner v. Barnet 56, 533 Woode V. McMeans 373 Wiswell V. Baxter 61 Woodfin V. Anderson 208 c. Wilkins 73 Woodhouse v. Jenkins 432 Witbeck v. Van Rensselaer 414 499 Witcamp v. Loehr 589, 596 Woodlief V. Bragg 262 Withby V. Mumford 438 Woodman v. Fulton 45 Witherill v. New Jersey 94 V. Somerset 86 94 Woodrosse v. Greenwood 431 Withers v. Richardson 325 Woodruff V. Dille 537 Witherup v. Hill 27 V. Elliott 386 Wittersheini v. Carlisle 325, 362 V. Houghton 620 V. Countess of Carlisle 251 V. Moore 372, 373 Wittowsky v. Reid 296 V. Sherman 823, 326 Woart V. Winnick 40, 44, 46 V. Woodruff 68,88 Wolcott V. Ely 666 Woods V. Bank '636 Wolf V. Ament 680 V. Buie 88 V. Foster 304, 305 V. Dille 649 671 V. Elliott 473 V. Western Union Tel. Co. 109 V. Houghton 742 Wolfe V. Fleming 226, 232 V. Schroeder 57 V. Whiteman 313, 318, 320 822, 358 V. Sherman 401, 403 Wolfensberger v. Young 185 212, 226 Woodson V. Smith 640 Wood V. Augustine 546, 549 Woodyard v. Polsley 474 r. Banks 636, 677 Wooley V. Osborne 715 V. Barney 714 Woolley V. Clark 493 V. Braddiek 527 , 730, 734 Wooten V. Hele 431, 432 V. Carpenter 607, 713 Wooters v. King 233 V. Charing Cross R. Co. 161 Wordsworth v. Harley 450 i.'. Cleveland Rolling Mills 94 Workman v. Guthrie 672, 689 V. Commonwealth 121 V. Leake 3o9 V. Day 664 Worley v. High 531 V. Fel 642 Wormwell v. Hailstone 325 Worthington v. Grimsditoh 289, 302, 443 TABLE OF CASES. Ixxxix Worthington v. Tormey 66 Worthley v. Emerson 298 Wragg V. Denham 653 Wrangham v. Hersey 120 Wray v. Tuskege Ins. Co. 52, 389 Wren v. Gayden 499 V. HoUowell 529 Wright V. Bates 568 V. Eaves 445, 556, 557 V. Hamilton 320, 356 V. Keithler 40 V. King 513 V. Kleyla 311 0. Mattison 642 V. Moore 466 V. Morris 76 V. Mut. Benefit Ins. Co. 101 V. Oakley 39, 41, 42, 45 «. Paine 314, 386 1'. Scott 9 V. Swan 109 V. Tichenor 311 V. Vanderplank' 135 Wrigley, Re 597, 599 W. S. R. R. Co. u. Stockett 39 Wyatt V. Hodson 272, 289, 400, 728 V. Sutton 141, 144 Wyeh V. East India Co. 578 Wylie V. Birch 450, 451 Wylly V. Collins 533 Wyman v. American Powder Co. 58 Wynne v. Cornelison 708, 709 V. Waring 502 Wyoming, &c. Co. v. Price 670 Wyse V. Dandridge 523 Wyzarta v. Great Northern R. Co. 157 Yale V. Eames Yancey v. Yancey Yandes «. Lefavour Yarborough v. Newell Yates's Case Yates V. Hambly V. Yates Yaw ». Kerr 167, Yea V. Fouraker Yeary v. Cummins Yingling v. Hesson York V. Bright Yost V. Grim Young V. Brown V. Camp V. Cook V. Dake V. Davis V. Epperson 17. McCormick V. Mackall 132, V. Monpoey ' V. Waterpark V. Weston Youst V. Martin Z. 730 41 731, 733, 734, 737 545, 552, 564, 568 22 554 568 179, 211, 249, 272 192, 196, 217, 240 441 89, 478 702, 703 262 402 614 88 23 743 25 72 175, 488, 529, 602 185, 196, 207, 249 502 354 162 Zacharias v. Zacharias 167, 181, 241, 507 Zeigler v. Hunt 330 Zeller v. Eckert 653 Zent V. Hart 732 ZoU V. Carnahan 240 Zuck V. Culp 529 STATUTES OF THE LIMITATION OF ACTIONS. STATUTES THE LIMITATION OF ACTIONS. CHAPTER I. What are — History of — General Rules. Sec. 1. What are Statutes of Limitation. 2. History and Origin of. 3. Adverse Possession. 4. Nature of Statutes of Limitation. 5. Principles on whicli founded. ' 6. General Rules. Statute having commenced to run will not stop. 7. Bar of Statute must be interposed by the Debtor. 8. The Law of Limitations a Part of the Lex Fori. Seo. 9. Distinction where Statute gives and limits the Kemedy. Rule when Title to Personal Prop- erty is acquired by Possession under Statute of one State. Constitutionality of Limitation Acts. What Statute governs. Effect of Change of Statute, as to Grimes. Rule when Title to Land is con- cerned. 10. 11. 12. 13. 14. Sec. 1. What are. — Statutes of limitation are such legislative en- actments as prescribe the periods within which actions may be brought upon certain claims, or within which certain rights maj- be enforced ; and those statutes which merely restrict a statutorj-- or other right do not come under this head, but rather are in the nature of conditions put by the law upon tlie riglit given. Thus, a statute that prescribes the term of court at which an indorsee of a note is required to sue the maker in order to hold the indorser liable,' or the time within which 1 McDaniel v. Dougherty, 42 Ala. 506 ; Davidson v. Petticolas, 34 Tex. 27. "Stat- utes of limitations, " says the court in Elder V. Bradley, 2 Sneed (Tenn.), 247, "are rig- orous rules the enactment of which public policy demanded. " They differ essentially from the civil-law doctrine of prescription, as they act simply upon and defeat the remedy ; while the latter defeat the right itself. Billings v. HaU, 7 Cal. 1. But VOL. I. — 1 instances often arise where these statutes not only defeat the remedy for the recov- ery of personal property, but also act upon the title, and defeat the rights of the party against whom it has run, so as to divest him of the title thereto in any jurisdiction. Sims V. Canfield, 2 Ala. 555 ; Fears v. Sykes, 35 Miss. 633 ; Newcombe v. Leavitt, 22 Ala. 631 ; Wiubm-n v. Cochran, 9 Tex. 123. STATUTES OF LIMITATION. [chap. I. writs of error shall be brouglit,i or a statute which fixes the time within whicii lands sold on execution may 'be redeemed/ or within which a judgment or other hen shall be enforced," or which merely postpones a claim unless enforced within a certain time,* or which provides that a certain class of evidence shall be admissible if action is brought within a certain time,= — are not statutes of limitation within the legal sense of the term, and consequently are not affected by any act suspending, extending, or repealing such statutes. But statutes which provide that no action"shall be brought, or right enforced, unless brought or enforced within a certain time, are statutes of limitations, although they merely act upon the remedy, and do not extinguish the claim.^ In other words, « Horton v. Clark, 40 Ga. 412; Mc- Millar v. Werner, 35 Tex. 419. In Stillwell ■-. Coons, 122 N. Y. 242, 1 Pace V. HoUaran, 31 Tex. 358 ; Trim V. McPherson, 7 Coldw. (Tenn. ) 15. In Georgia, it is provided ty § 3626 of the Revised Code tiiat, when any person has bona fide and for a valuable consideration purchased real or personal property, and has been in possession of such real prop- erty for four years and of such personal property for two years, the same shall be discharged from the lien of any judgment against the person from whom he pur- (;hased ; and this is held not a statute of limitations, but rather a condition put by law upon the lien of the, judgment, like the duty of recording a mortgage, and con- sequently that it does not come within the purview of a statute suspending tem- porarily all statutes of limitation. And in Tennessee a. similar doctrine was held in reference to a statute which allows a party to whom land has been sold on execution to redeem the same within two years. Reynolds v. Baker, 6 Coldw. (Tenn.) 221. So, also, in Texas, a statute providing that a creditor of a deceased person must pre- sent his claim against the estate within twelve months, or it will be postponed un- til all the claims which were presented within that time have been fully paid, was held not a statute of limitations, but rather a condition imposed upon the creditor. Cliandler v. Westfall, 30 Tex. 475 ; Ryan V. Flint, id. 382. 2 Reynolds II. Baker, 6 Coldw. (Tenn.) 221. 3 Battle V. Shivers, 39 Ga. 405 ; Chap- man V. Aken, id. 347 ; Darly v. Isbell id. 342. 4 Chandler v. Westfall, 30 Tex. 475; Ryan v. Flint, id. 382. '^ Neville v.Northcutt, 7 Coldw. (Tenn.) 294. the plaintiff, as superintendent of the poor of the county of S., after receiving notice from the overseer of the poor of the town of T., that he had given temporary relief to one H. a pauper, who had formerly resided in the town of B. in another county, with a statement of the circum- stances of the case, believing that the removal of H., to the town of T., was prohibited by the Revised Statutes mailed to the defendant, the overseer of the poor of the town of B., a notice of the removal, with a request that he provide for the relief and support of H. , within the thirty days prescribed by the statute. After service of notice the plaintiff received an answer froni C. denying unequivocally, but not in the words of the statute, that H. was a pauper while he lived in his county, and denying any liability foi* his support. These transactions were prior to the amendment to the provisions of the Revised Statutes in reference to the re- moval of paupers from one town to an- other. More than six months after receipt of an answer, this action to recover for such support was commenced. It was held that as the action was not commenced within three months after receiving the de- fendant's denial of liability, it was barred by the statute. Also, that the denial of liability was sufficient ; that it was, not necessary it should follow the language of the statute. In re Will of Gouraud, 96 N. Y. 256, it was held that in proceedings taken under the statute for the revocation of the pro- bate of a will of personal property, the contestant is not confined to matters which § 1.] HISTORY AND ORIGIN OF. 3 statutes which destroy a remedj' or a right unless enforced within a certain specified period are statutes of limitation, and those which merely suspend a remedy or right unless enforced within a certain time are not statutes of limitation in an}- sense. At the common law there was no limitation as to the time within which an action might be brought. But courts of equity, recognizing the injustice of enforcing stale demands, adopted a rule that in all cases the payment of a bond or other specialty would be presumed after the period of twenty years, and courts of law adopted the same rule.^ This presumption of payment existed independently of any statute, and differs in many respects in its effect from the statutor}' limitation. In a Pennsylvania case,^ Mk. Justice Clakk says : " This presumption is an established rule of the law derived by analogy from the English statute of limitations. It originated in equity and was afterwards en- grafted into the common law, and has since been steadily maintained. It is not, like the statute of limitations, a bar to the action on the original contract, therefore a new promise is not necessary to sustain the suit. Any competent evidence which tends to show that the debt is unpaid is admissible for that purpose. The evidence made consists of the defendant's admissions made to the creditor himself, or to his agent, or even to a stranger, but an admission will not be as readily implied from language casually addressed to a stranger, as when ad- dressed to the creditor in reply to a demand for the debt. It is of no consequence that the admission of non-payment is accompanied by the refusal to pay. The action is not founded upon a new promise, but upon the original indebtedness. The question as against the presump- tion, is whether or not the debt is in fact unpaid." This presumption of payment may be overcome by evidence which would be wholly insufficient as against the general statute of limitations,^ as if non-payment is established by an admission of the indebtedness, although such admission is accompanied by refusal to pay and denial of liability to pay, yet the presumption is defeated.* were not investigated and tried when the the form prescribed is required to he filed will was admitted to probate, but the within the year, instead of allegations. whole case is left open, and he has the ^ Bean v. Tonnele, 94 N. Y. 381. right to have the questions then litigated ^ Gregory v. Com., 121 Penn. 611. and determined tried, the same as If no » Walker v. Eobinson. 136 Mass. adjudication had been had thereon. 280. , „ „ „ ,„„ , To bringthe case within the one year's * Bentley's Appeal,99Penn.St.500;and limit fixed by said statute it was not see Shubrick v. Adams, 20 S. C. 49, where essential to have a citation issued within it is held -that in order to overcome this the year ; it was sufficient if the requisite presumption the evidence must be of a aMegations were filed with the surrogate character sufficient to overcome the statu- witMn that time. The rule is the same tory bar. under the code except that a petition in STATUTES OF LIMITATION. [chap. I. In a Pennsj-lvania case,^ Mk. Justice Strong, after commenting on the essential difference between tliis presumption and the statutory bar, says: " The latter [the statute] is removed by nothing less than a new promise to pay or an acknowledgment consistent with such a promise. The presumption is rebutted, or to speak more accurately, does not arise where there is affirmative proof beyond that furnished by the specialty itself that the debt has not been paid, or where there are circumstances that suflSciently account for the delay of the creditor." Sec. 2. History and Origin of. The law relating to the limitation of actions, so far as questions of title or contract are concerned, is merely the creation of statute. At the common law there was no limit to the time within which an action might be brought, except in the single instance of a fine, with proclamations.^ But in the case of torts the maxim, " actio personalis moritur cum persona," applied, and therefore were only limited by the duration of the life of either party. The want 1 Eead v. Read, 46 Penn. St. 239. ' In the instance of a fine with procla- mations, the time within which a stranger might make a claim was limited to a year and a Jay thereafter, and by Stat. 32 Hen. VIII. c. 2, this was enlarged to five years. Co. I.itt. 26 a. As to the statement that this was the only limitation at common law, see Blanshard, 4. The statement of Bkactox to the contrary, " omnes ao- tioues in mundo infra certa tempora habent limitationem," Lib. 2, fol. 52, is extremely doubtful. As one author ex- presses it, " as doubtful as the Latinity." Banning on Limitations, 1. LoRn Coke says that the limitation of actions was by force of various statutes. Co. Litt. 115 ; 2 Int. 95; 4 Coke, 10; 5 Bacon's Abr. 461; Spelm's Glossary, 32. And such seems to be tlie generally accepted idea both of text- writers. Banning on Limitations, 1-8, and the courts, WaU v. Robson, 2 N. & McCord (S. C. ), 499 ; People v. Gilbert, 13 John.s. (X. Y.) 227; Wilcox v. Finch, 2u id. 475. The lapse of time, as twenty years, without the institution of legal pro- ceedings for the recovery of a debt, was held to afford a strong prima facie pre- sumption of payment, or that the cause of action had been satisfied. Bracton, lib. 2, fol. 2S2, says: " Omnis querela et actio injurianim limitata est infra certa tem- pora." And also see 2 lust. 95. As, how- ever, no precise time was fixed at the common law when a claim should be re- garded as absolutely extinguished, it was found necessary for the protection of trade and commerce, as well as of the rights of parties generally, to fix .such period by statute. These statutes affect only the remedy. They go " ad litis ordinationem," and not " ad litis decisionem," in a just judicial sense. Their object is to fix a certain period within which action may be brought, whether by citizens or foreigners, and thus enable debtors to enjoy a re- pose from stale demands. They are now generally regarded with favor, and as being in the interest of justice, and for the prevention of fraud, by com- pelling pai-ties to bring their actions be- fore the proofs for or against tkeir claims are lost. Story on Conflict of Laws, sec. 576. United States v. Thompson, 98 U. S. 486 ; Bean v. Tonnele, 94 X. Y. 381 ; Black V. Piatt, &c. Coal Co., 85 Ala. 504 ; Harrison i>. Heflin, 54 Ala. 552 ; Gregory V. Com. , 121 Penn. St. 611 ; Runner's Appeal, 121 id. 649 ; Breneman's Appeal, 121 id. 641 ; Poi-ter v. Nelson, 121 id. 628 ; Lash V. VonKida, 109 id. 207 ; Hays' Appeal, 113 id. 380 ; In re Neilley, 95 X. Y. 382 ; 'Wells v. Washington, 6 JIunf. (Va.) 532; Kriss v. Kriss, 28 W. Va. 388 ; Tucker v. Baker, 94 X. C. 162 ; Buie V. Buie, 2 Ired. {X. C.) 87 ; Walker V. Robinson, 136 ilass. 280 ; A'an Rens- selaer V. Livingston, 12 Wend. (X. Y.) 490. 2.] HISTORY AND ORIGIN OF. of a limitation was supplied, in a measure, by a doubtful doctrine of presumption,! and also by the trial by wager of law, which is believed 1 At the common law a presumption battery or wounding, imprisonment, or was raised from the non-payment of a debt any of them, within one year next after for twenty years, that it had been paid, the end of this present session of Parlia- throwing the burden of establishing non- payment upon the party seeking to enforce it ; and this presumption still exists, not- withstanding the statutes of limitations. Carr v. Dings, 54 Mo. 95. Lord Ellen- borough, in Williams v. Jones, 13 East, 449. The right of action descended to the plaintiff's representative, against the repre- sentative of the defendant, for an unhmited time. Banning on Limitations, 10. But in actions for torts, the rule actio per- sonalis moritur mm persona prevailed; and on the death of either party, not only an ment, or within four years next after the cause of such actions and not after ; and the said actions upon the case for words, within one year next after the end of this present session of Parliament, or within two years next after the words spoken and not after." Sees. 4 and 7 of the act are as follows : " 4. 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 action, but all light of action, died with judgment be given against the plaintiff, 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 revei-se 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 judg- ment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after. 7. Provided nevertheless, and be it further enacted, That if any per- son or persons that is, or shall be entitled to any such action of trespass, detinue, action sxir trover, replevin, actions of account, actions of debt, actions of tres- pass, for assault, menace, battery, wound- ing or imprisonment, actions upon the case for words be, or shall be, at the time of any such cause of action, given or ac- crued, 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 coming to, or being of full age, discovert, of sane memory, at large, and returned from be- yond the seas, as other persons having no such impediment should have done." It will be observed that there is no direct mention in this act of the action of assump- sit, which is the most important of all the the person ; and such is now the rule, ex- cept in so far as the right is saved by stat- ute. To remedy this evil (for it really was so), the statute of 21 James I. o. 16, was passed, limiting the time within which actions arising out of contracts, .and a cer- tain class of torts, should be brought. The third section of this act is as follows : " All actions of quare 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 of merchandise be- tween merchant and merchant, their fac- tors or servants ; all actions of debt grounded upon any lending or contract without specialty ; all actions of debt for arrearages of rent, and all actions of as- sault, menace, battery, wounding, or im- prisonment, 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), the said actions upo!i the case (other than for slan- der), and the said actions for trespass, debt, detinue, and replevin for goods or cattle and the said action of trespass, quare clausum fregit, within three years next after the end of this present session of Par- liament, or within six years next after the cause of such actions or suits and not after; and the said actions of trespass, assault. 6 STATUTES or LTMITATIOU. [CHAP. I. to have operated as a check on stale demands.^ When the abuses from stale demands became so great as to be unendurable, the legislature did not at first fix any certain and progressive period within which actions should be commenced, but from time to time chose for that purpose certain notable times ; and in this wa}', by virtue of various statutes, the beginning of the reign of King Henry the First, the return of King John from Ireland, the journey of Henry the Third into Nor- mandy, and the coronation of King Kichard the First, were successively chosen, that suits and actions, the cause of which arose previous to their respective dates, should be barred.^ The early statutes had reference to realty alone, and, though productive of immediate relief, the advantage was only temporary, and in the reign of Henry the Eighth a more commodious course was taken, so that, in the language of Lord Coke, "by one constant law certain limitations might serve both for the time present and for all times to come." ° This was effected by the statute 32 Hen. VIII. e. 2* by which the limitation of time, in every case, was reduced to a fixed interval between the accrual of the right and the commencement of the action. These intervals were, in the various cases, periods of thirtj', fifty, and sixty years. The statute 21 James I. superseded all prior statutes, and, with some exceptions, is substantially in force in many of the States, ard prac- tically in all of them, as its leading features have been incorporated to a greater or less extent in all of them ; and except where essential changes have been made, the decisions of the English courts under that statute are generally accepted by our courts as affording sound rules of construction.^ actions ; but it was held to embrace this at law only applied to an action of debt action, as being fairly within the reason of on a simple contract, and of detinue. The the act, if not fairly considered to be em- action of assumpsit did not come into gen- braced in the action of trespa.ss on the eral use until after Slade's Case, 7 Mod', case. Bacon's Abr. Limitations, E 1 ; 112, in the year 1603, and as through it Harris v. Saunders, 4 B. & C. 411 ; Piggott wager at law was avoided, it took the V. Eush, 4 Ad. & El. 912; Inglis v. Haigh, place of actions of debt on simple eon- 8 JI. & ^Y. 769. This statute did not em- tracts, as the action of trover took the brace specialties, or contracts under seal, place of detinue. Wilkinson on Limita- judgments, or other matters of record prop- tions ; 3 Blackstone's Com. 341 ; 2 Bouv. erly coming under that head ; but these Law Die. (Wager of Law). were provided tor by a later statute, 3 & 4 2 Hale's Common Law, 152 ; Co. Litt. AVm. IV. e. 27, which made it necessary 114 J 115 a. to bring an action for such debts within 8 2 Inst. 95. twenty years. 4 Co. Litt. 115 a. 1 By this method a defendant was al- ^ Walden v. Gratz, 1 Wheat. (U. S. ) lowed to clear himself by his own oath and 292. In the statute 21 James I. c. 16, that of eleven compurgators. In the Code the rights of the crown were to be barred at Xapoleon, Civil, 2275, something analo- the expiration of sixty years from the be- gous to the wager of law is preserved, but ginning of the then ses.sion, viz. Febrnai-y the purpose is opposite, viz. to prevent 19, 1623. The limit of legal memory still abuse from the law of limitations. Wager dates from the time of Richard I. § 4.] NATX7RE OF. 7 Sec. 3. Adverse Possession. — The statute of James applied to real as well as personal actions, and was the principal act of limitation in England as to both, until the adoption of the statute 3 & 4 Wm. IV. c. 27. Prior to the adoption of the latter statute, the construction of the statute of James, relative to realty, had become involved in almost hopeless confusion, especiallj- so far as the old doctrine of adverse possession was concerned. Indeed, so great had become the doubts as to the true construction of this portion of that statute, tiiat. Lord Mansfield, in speaking of it in a leading case,* upon this branch, of it, made use of this strong expression: "The more we read, the more we shall be confounded." But in England this statute was. greatly modified by the statute 3 & 4 "Wm. IV. This statute greatly simplified the law by abolishing, in the old sense of the expression, the doctrine of adverse' possession ; and although in England some impor- tant changes hav^ been made ^ in these statutes, especially so far as- relates to the length of limitation, the main features of the statute "Wm. IV. have been left undisturbed. In this country there is more diversity in the statutes relating to realtj' than in reference to personal actions ; but this matter will be treated of, so far as our statutes are concerned, in a separate chapter, and we will not pursue it further here. Sec 4. Nature of Statutes of Limitations. — Statutes of limitations were formerlj' regarded with little favor, and the courts devised numer- ous theories and expedients for their evasion ; but latterlj' they ara considered as beneficial, and resting on principles of a sound public policy, and as not to be evaded except b}' the methods provided; therein.' Indeed, thej^ are now termed statutes of repose,* and are re- ' Atkyns v. Horde, 1 Burr. 60 j 2 Hart's Appeal, ante. In People v. Jmlf;e Smitli's L. C. of "Wayne Co., 27 Mioh. 138, the court 2 37 & 38 Vict. c. 57. says: "Theearlydecisions, made when the- ' Eeid II. Clark, 3 McLean (IT. S.), 480; statute of limitations was regarded as an Clementson v. Williams, 8 Cranch (IT. S.), unconscionable defence, allowing a plsiin- 72; Eoberts v. Pillow, 13 How. (tJ. S.), tiff who had been consulted upon his origi- 472 ; Bell v. Morrison, 1 Pet. (U. S.) 351; nal declaration, and wliose real cause of McClnny v. Silliman, 3 id. 270 ; Hawkins action had become barred, to evade tlie V. Barney, 6 id. 457 ; Bradstreet v. Hunt- statute by amending his declaration, ought, ington, id. 402. But, to avail himself of not to be followed at the present day. it, a party must bring himself strictly Statutes of limitations are now generally within its provisions. Eussel! v. Barton, regarded as statutes of repo.se, and cnn- 6 McLean (U. S.), 577; Sanborn v. Stet- strued with the same favor as other stat- son, 2 Story (U. S. C. C.) 481. Such stat- utes, to effect legislative intent." utes are regarded "as beneficial." Hart's * In Eoberts v. Pillow, 1 Humph, Appeal, 32 Conn. 540; Peck v. Botsford, (Tenn.) 624, the court says: "Statutes 7 id. 172 ■ Weed «. Bishop, id. 172 ; of limitations are founded on sound pub- Marshall V. Dolliber, 5 id. 480 ; Lord v. lie policy, are statutes of repose, and ara Shaler, 3 id. 131. They are looked upon not to be evaded by a forced construction." "as furnishing a presumption of pay- In Boll ». Morrison, 1 Pet. (U. S.) 360, meiit, rather than as a statutory bar to Story, J., gives these statutes his nn- a valid claim." Hinman, C. J., in qualified approval. He says : "Statutes 8 STATUTES OF LIMITATION. [CHAP. I. garded as essential to the security of all men ; * and opinion, professional and general, has been in favor of a continuous augmentation of their stringency, as is evinced by the numerous stringent changes made in their provisions by the legislatures of nearly all the States within the last few years, especially as to the character of proof required to remove the statutory bar, and as to the periods of limitation, and the extension of their pi'ovisions to a large class of cases not embraced in former statutes. These statutes are declared by Livingston, J.,^ "among the most beneficial to be found in our books." " They rest upon sound policy, and tend to the peace and welfare of society;"' and are so construed as to effectuate the intention of the legislature, although in individual cases they may seem to be productive of great hardship. There certainly can be no hardship in requiring parties to settle their business matters within certain reasonable periods before human testi- mony is lost and before human memory fails ; and if, with the sure prospect of losing the right to a remedy thereon, they stand by inac- tive and permit' their claim to be barred, it is not the law, but the party, who is responsible for the hardship entailed. There can be no question that laws of limitation are founded on correct and salutary principles, although, in isolated cases, they may be productive of great hardship ; therefore, although they are to be encouraged, yet, as they are acts which take away existing rights they should always be con- strued with reasonable strictness, and for the benefit of the rights sought to be defeated thereby, so far as can be done consistently with their letter and spirit. In this country it was at one time seriously questioned whether these statutes were not unconstitutional, as inter- fering with the rights of property, guaranteed by the paramount law of the Constitution ; but it has come to be pi'etty well settled tliat to make or repeal them is not an interference with a vested right, except when they are made to act retrospectively.* of limitation, instead of being received in * Society for the Propagation of the an unfavorable light, as an unjust and Gospel v. Wheeler, 2 Gall. (U. S.) 105. discreditable defence, should have re- In Bank of Alabama v. Dalton, 9 How. ceived such support from courts of jus- ( U. S. ) 522, a State statute declaring that tice as would have made them what they any judgment obtained in another State were intended emphatically to be, stat- prior to the passage of such statute should utes of repose." Jlartin v. Tully, 72 Ala. be barred, unless suit was brought thereon 24 ; Shepherd v. Thompson, 122 U. S. 231. within two years after the passage of the 1 2 Salk. 421. act, was held constitutional. But in " Fishery. Harnden.l Paine(U.S.C.C.), Christmas v. Russell, 5 Wall. (U. S.) 290, 61. a State statute, which provided that "no 2 McLean, J., in MeClunyi). Silliman, action shall be maintained on any judg- 3 Put. (U. S.) 270. See also Green v. ment or decree rendered by any court Johnson, 3 G. & J. (Md.) 394 ; McCarthy without this State against any person who, r. White, 21 Cal. 495; Richmond v. Mary- at the time of the commencement of the land Ins. Co., 8 Cr. (U. S.) 84; Phillips action in which such judgment, &c., was V. Pope, 10 B. Hon. (Ky. ) 163 ; McQueen or shall be rendered, was or shall be a V. Babcoek, 3 Abb. App. (N. Y.) 129; resident of this State, in any case where Dickinson o. McCanny, 5 Ga. 486. the cause of action would have been barred § 6.] EULE "WHEN TIME BEGINS TO KUN. 9 Sec. 5. Principles on which founded. — According to Pothier, the principles upon which laws of limitation and prescription are founded depend in part upon the presumption of payment or release arising from the lapse of time, inasmuch as it is not common for a creditor to wait so long, and prescriptions are founded on the ordinary course of things, " ex eo plerumque fit," and partly, also, because a debtor ought not to be obliged to take care for ever of his acquittances, which prove a demand to have been satisfied ; and it is proper to limit a time beyond which he shall not be under the necessity of producing them.* They are, too, according to the same authority, partly established for the punishment of the creditor. The law having allowed him a time to institute his action, the claim ought not to be received when he has suffered that time to elapse." Whatever may formerly have been thought to be the ground upon which these statutes are based, it is now quite generally conceded that their purpose was, and is, to compel the settlement of claims within a reasonable period after tlieir origin ; and while the evidence upon which their enforcement or resistance rests is j'et fresh in the minds of the parties or their witnesses, and that there is no presumption to be raised either as to payment or otherwise, from the mere lapse of the statutory period, more than would naturally arise as to any stale demand." Sec. 6. General Rules. Statute having commenced to run will not stop. — Before proceeding to discuss the topics involved, in detail, there are some general rules, of almost universal application, which it may be well to notice. And it is proper to say here, that while the statutes of the .various States apparently differ in their essential pro- visions, there is, after all, no material difference in their general results, or the principles controlling them, and they are all founded upon the statute of James, and retain the essential provisions of that statute, with some modifications and additions, so that the prin- ciples evolved from the cases will be equally applicable in all the States. One of the most important and universal rules (which is not, however, without exception) is, that time, when it has once commenced to run in any case, will not cease to do so by reason of any subsequent event wliich is not within the saving of the statute.'' Thus, it has been held that it l.y any act of limitation of this State if * Conover v. Wright, 6 N, J. Eq. 613 ; ,suoh3uithad been brought therein," was Clark v. Richardson, 4 N. J. l!:q. 347 ; held unconstitutional and void, because it Roberts v. Moore, 3 Wall J/' (U- S-) imtiairs the right of a party to enforce a 292 ; De Kay u. Darrah, 3 N. J. Eq 288 , judgment regularly obtained in another Wright v. Scott, 4 Wash. (U. S. C. C.) 16; State, and entitled to full faith and credit Pinckuey v. Buvrage, 81 N. J. L. 21 ; in the State in which he sues upon it. Thorpe i>. Covwin, 20 N. J. L. 811 ; Brad-^ Edmunds ... Waugh, L. E. 1 Eq. 421. street v. Clark 12 Wend. (N. Y.) 602 , 1 Evans's Pothier, 644. Peck «. Randall, 1 Johns. (N Y.) 66 j J j/ Kestler v. Hereth, 75 Ind. 177 ; Cole v. » McCarthy v. White, 21 Cal. 495. Runnels, 6 Tex. 272 ; Chevalier «, Durst, 10 STATUTES OP LIMITATION. [chap. I. is no answer to a plea of the statute, unless otherwise provided therein, that, after the cause of action accrued, and after the statute had com- menced to run, the debtor within six years died, and that by reason of litigation as to the right of probate, an executor of his will was not appointed until after the expiration of six years, and that the action was brought within a reasonable time after probate was granted.^ In another English case,^ Loed Kenyon says : " I never heard it doubted id. 239 ; Den v. Richards, 15 N. J. L. 347; Coy w. Nichols, 5 Miss. 31; Pearce I). House, Term Rep. (N. 0.) 305; Fitz- hugh V. Anderson, 2 H. & M. (Va.) 289 ; Hudson V. Hudson, 6 Munf. (Va.) 352; Fewell .-. Collins, 3 Brev. (S. C.) 286 ; Parsons v. McCracken, 9 Leigh (Va. ), 495; Faysoreux v. Prather, 1 N. & McCord (S. C), 296 ; Rogers v. Hillhouse, 3 Conn. 398; Tyson v. Britton, 6 Tex. 222; Crosier V. Gano, 1 Bibb (Ky.), 257. Thus, except where the statute otherwise so provides, the fact that the action was enjoined will not pi-erent the statute from running. Bar- ker V. Miller, 16 Wend. (N. Y.) 692 ; Ber- rien V. Wright, 26 Barb. (N. Y.) 208; Sands v. Campbell, 31 N.Y. 345; Prideaux V. Webber, 1 Lev. 31 ; Bacon's Abr. Limi- tations, 238 (E), 6. There is a well- known instance of the application of this rule drawn from the time of the English civil wars. Thus, in an action in answer to a plea of the statute, the plaintiff replied that a civil war had broken out, and that the government was usurped by certain traitors and rebels, which hindered the course of justice, and by which the courts were shut up, and that within six years after the war ended he commenced his action, and yet his replication was held to be bad ; and in confirmation of this doc- trine we find an act of Parliament of 1 W. & M. c. 4, whereby it was expressly enacted that the interval that elapsed from the day of the departure of King James, on the 10th December, 1687, till the as- sumption of the government by King Wil- liam, on the 12th of March, 1688, should not be accounted any part of the time within which any person by virtue of the statute of limitations might bring his action. Prideaux v. Webber, ante; Ba- con's Abr. Lim. 238 (E), 6. Doyle v. Ward, 23 Fla. 90. 1 Rhodes w. Smethurst, 4 M. & W. 42 ; Daniel v. Day, 51 Ala. 481 ; Meeks v. Vas- sault, 31 Ark. 364 ; Hapgood v. Sonthgate, 21 Vt. 584 ; Conant v. Hitt, 12 id. 285 ; Sambs v. Stein, 53 Wis. 569 ; Baker v. Brown, 18 111. 91 ; Pitkin u. Hewitt, 17 Ala. 291 ; Baker v. Baker, 13 B. Mon. (Ky.) 406 ; Hagraan v. Vieally, .3 Cr. (U. S.) 325; Lynan v. Walker, 35 Cal. 634; Hull V. Deatly, 7 Bush (Ky.), 687; ' Brown v. Merrick, 16 Ark. 612; Stewart v. Shelden, 5 Md. 434; McCullough v. Speed, 3 McCall (S. C), 455. In Johnson v. Wren, 3 Stew. (Ala.) 84, the court held that the statute of limitations does not begin to run until there is some one to sue, or liable to be sued, but that when the statute once begins to run, the death of neither party impedes its operation. See also Granger v. Granger, 6 Ohio, 35 ; Beauchamp v. Mudd, 2 Bibb (Ky.), 637 ; Nicks V. Martin'dale, 1 Harp. (S. C.) 133. But, where the cause of action arises after the intestate's death, it is considered as existing only from the time when there was some one capable of suing, and con- sequently, in that case, the statute does not begin to run until administration is granted. Geigers v. Brown, 4 McCord (S. C), 423 ; Fishwick «. Sewell, 4 IT. & J. (Md.) 399 ; Aritt v. Elmore, 2 Bailey (S. C), 595 ; Clark v. Hardeman, 2 Leigh (Va.), 347. = Durore v. Jones, 4 T. R. 300. Pro- ceedings in bankruptcy under the Federal laws do not suspend the operation of the statute of limitation. It is well settled that the pendency of proceedings under the insolvent laws of a State does not sus- pend the operation of the statute of limi- tations upon debts which are provable in insolvency, since such proceedings do not prevent the creditor from bringing an ac- tion upon his debt. Collester i). Bailey, 6 Gray (Mass.), 517 ; Stoddard v. Doane, 7 id. 387 ; Richardson v. Thomas, 13 id. 381. So it has been held that the repre- sentation of the estate of a deceased person §6.] RULE WHEN TIME BEGINS TO EUN. 11 whether, when any of the statutes of limitations had begun to run,' a subsequent disabilitj- would stop their running. If the disability would have such an operation on one of those statutes, it would also on others. I am clearly of opinion, on the words of the statute of fines, and on the uniform construction of all the statutes of limitations down to the present moment, and the generally received opinion of the pro- fession on the subject, that the question ought not to be disturbed." In some of our State courts, and in the United States court, an impor- tant exception to this rule has been adopted, which, although not within the letter, is perhaps within the spirit of the statutes of the several States- and their saving clauses, which is, that the statute does not run during a period of civil war as to matters of controversy- between citizens of the opposing belligerents ; ^ but, as this exception is predicated upon the ground that the courts are not open to belligerents, it follows that it does not apply to questions arising between residents of the same State, or as to those who are not residents of either belligerent section.'' The general rule is, that whatever the courts may think the legislature would have done if it had foreseen a certain contingencj', nevertheless. as insolvent and the appointment of com- missioners does not suspend the operation of the statute limiting actions against ad- ministrators to two years from the time of their giving bonds. Tarbell v. Parker, 106 Mass. 347 ; Richardson v. Allen, 116 id. 447. The same principle applies to bankruptcy proceedings where the bank- rupt law does not prohibit a creditor whose debt has not been proved from bringing an action against the bankrupt. Such stat- utes do not generally suspend the right of a creditor to commence an action, but only prevent him from prosecuting it to final judgment until the bankrupt has the op- portunity to obtain his discharge. Doe v. Irwin, Mass. Sup. Ct. 1883. ■ 1 Coleman o. Holmes, 44 Ala. 124 ; Adger v. Alston, 15 Wall. (U. S.) 655 ; Stewart v. Kohn, 11 id. 493; Brown v. Hiatt, 15 id. 177 ; Levy v. Stewart, 11 id. 244 ; Chappelle v. Olney, 1 Sawyer (U. S. C. C), 401. This applies to statutes re- lating to appeals also. The Protector, 9 Wall. (U. S.) 687. See, on general prop- osition, Ahrent v. Zaun, 40 Wis. 622 ; Jones V. Nelson, 51 Ala. 471 ; Johnston V. Gill, 27 Gratt. (Va.) 587 ; Edwards v. Jarvis, 74 N. C. 315 ; Hawkins u. Savage, 75 id. 133. This doctrine, so far as it has grown up under acts of the legislatures in the States lately in rebellion suspending the statute during the civil conflict, is cor. rect ; but, independent of those acts or resolutions, there is no possible ground on which the doctrine could stand, except that the suspension is fairly implied from the emergency ; and this latter position opens the door for a multitude of excep- tions, and would seem to border largely on the usurpation of legislative powers by the courts, but with us, as will be seen from the case cited, the doctriue is too well established to be disturbed. Semmes v. Hartford Ins. Co., 13 Wall. (U. S.) 158; Wiggle t>. Owens, 45 Miss. 691; McCntchen V. Dougherty, 44 id. 419 ; Coley v. Henry, 42 Ga. 61 ; Clipper v. Hutchinson, 33 Tex. 120 ; Bradford v. Shine, 13 Fla. 393 ; Kirkland v. Krebs, 34 Md. 93 ; Selden v. Preston, 11 Bush (Ky.), 191; Petzer ti. Burns, 7 W. Va. 63 ; Ross v. Jones, 22 Wall. (U. S.) 576 ; McMerty v. Morrison, 62 Mo. 140 ; Gooding v. Varn, Chase's Dec. (U. S. C. C.) 286 ; Bell v. Hanks, 57 Ga. 272 ; Eddins u. Grady, 28 Ark. 500 ; Hall V. Denckler, 29 id. 506 ; Ran- dolph V. Ward, id. 238. 2 Hanger i). Abbott, 6 Wall. (U. S.) 532 ; Smith v. Charter Oak Ins. Co., 64 Mo. 330. Nor does it apply to a mere personal trust, which could have been executed by the trustee without the inter- vention of the courts. Mayo v. Cart- wright, 30 Ark. 407. 12 STATUTES OF LUnTATION. [chap. I. a case cominc fairly within the limitation imposed by the statute cannot be excepted from its operation, unless it also comes fairly within the exceptions named therein.^ In other words, the legislature makes the law and the courts apply it, and they cannot extend it to cases to which it does not apply, or except from its operation cases clearly coming within its provisions, and not excepted from its operation.^ The sus- pension by implication, held by the courts to have been wrought during the late civil war, can only be justified upon the ground of paramount necessity, and can only be applied so far as such paramount necessity exists. Consequently, as to citizens of other States, as to whom the courts of the insurrectionary States were closed, such suspension, during such period,' is held to have existed, upon the ground that, by a superior power, the creditor or party has been disabled to sue, without any default of his own, and therefore that none of the reasons which induced the enactment of these statutes apply while the actual disability so raised exist ; * and, so soon as the disabilitj- ceased, the suspension ceased ; ^ nor did it exist except as to the citizens of those States to whom such courts were closed." The rule as to disabilities is that, when the statute begins to run, it is not arrested by anj' subsequent disability, unless expressly so provided in the statute ; and a person who claims the benefit of the general excep- tions in the statute can only avail himself of such disabilities as existed when the right of action first accrued.' Thus, the pendency of adminis- 1 The Sam Slick, 2 Curtis (0. S. C. C), 480. In Hill V. Siiprs. Ben. Co., 119 N. T. 344, 53 Hun (N.Y.), 194, in an action under the statute, to recover compensation for property destroyed in consequence of a mob or riot, it appeared that an action was begun in the county court for the same cause within the three months limited by said act, in which the complaint was dis- missed for want of jurisdiction in that court to enteitain actions brought to recover a sum exceeding $1,000 ; there- after this action was commenced, but after the lapse of the statutory period. It was held that the action was not maintainable ; that as it was brought under special law, and was maintainable solely by Its authority, the limitation was so incor- porated with the remedy given as to make it an integral part of It and was a con- dition precedent to the maintenance of the action ; and that the provision of the code providing thai when an action is commenced within the time limited and is terminated "in any other manner than by voluntary discontinuance, dismissal for neglect to proceed, or a final judgment on the merits, the plaintiff may commence a new action for the same cause within one year after," such termination, did not apply. 2 United States v. Maillard, 4 Ben. (U. S. C. C.) 459 ; Semmes v. Harxford Ins. Co., 13 Wall. (U. S.) 158. ' Coleman v. Holmes, 44 Ala. 124 ; Levy V. Stewart, 11 Wall. (U. S.) 244 j Mixer v. Sibley, 53 111. 61. * Braun v. Sauerwein, 10 Wall. (U. S.) 218 ; Stiles v. Easley, 57 111. 275. ' Stiles V. Easley, ante ; Braun v. Sauer- wein, aivte. 8 Smith V. Charter Oak Ins. Co., 64 Mo. 330. But see Eoss v. Jones, 22 Wall. (U. S. ) 576, where it was held that the statute was suspended as to citizens of other of the rebel States, as well as to citi- zens of the loyal States. ' Hogan V. Knl-tz, 94 U. S. 773; Hodges V. Dunden, 51 Miss. 199; Bozeman v. Browning, 31 Ark. 364 ; Watts r. Cunn, 53 Miss. 502; Hogg v. Ashman, 83 Pena §6.J EULE WHEN TIME BEGINS TO RUN. 13 tration, and the inability of the heir to maintain an action to recover real estate by reason thereof, and the fact that the present right of action is in the administrator, does not constitute such a disability on the part of the heir, within the meaning of a statute which excepts from its operation persons under a disability when the right of action first accrues. The fact that the heir cannot sue because the right of action is, for the time being, vested in the administrator, does not constitute a disabilitj- ; because the administrator in such cases is the trustee or representative of the heir, and not only is the exclusive right to bring an action vested m him, but the law also imposes upon him the duty to bring it, and if be fails to do so, whereby any right is lost to the heir, he is responsible therefor. So, too, it is held that when the statute began to run during the life of the devisor, it is not arrested by any disabihty in the dev- isee ; ^ so where it begins to run against the ancestor, it is not sus- pended by any statutory disability in the heir at the time of the descent cast.' It may be stated, as the uniform result of the cases decided on the statute of limitations, that it does not deprive a party of his remedy, unless he has been guilty of the laches or default contemplated therein,* St. 80; Smith v. Newby, 13 Mo. 159; Pendergrast v. Foley, 8 Ga. 1. See chap- ter on Disabilities in Personal Actions, post. ' Meeks v. Vassault, 3 Sawyer (U. S. C. C.) 206. ^ Bozeman v. Browning, 31 Ark. 364. * Rogers v. Brown, 61 Mo. 187; Swear- ingen v. Robertson, 39 Wis. 462. * In this copnection it may be well to examine the early English cases arising under a statute similar to that existing in most of the States. In Gary v. Stephen- son, 2 Salk. 421, C. was indebted to A., who died, and B. received the money, and afterwards the plaintiffs wife took out ad- ministration to A., and within six years after the grant of administration, but not within six years after the receipt of the money, the plaintiff sued B. for money had and received; it was held that the statute of limitations could be no bar to the action, because the plaintiif's title com- menced by taking out the letters of ad- ministration. In that case the money was not received by the defendant until after the death of the intestate; but the court says the statute does not apply, proceeding on the ground that there were no laches on the part of the plaintiff, because there was there no cause of action until an administrator was appointed, when the money became money received to his use. In Sanford's Case, Cro. Jac. 61, it was held that where before the expiration of an existing term the grantee died, and at the expiration of the first term the les- sor entered and levied a fine before ad- ministration granted, the administrator had five years to enter in, because, says the court, " no one had the right of entry before.'' This case arose under the stat- ute of fines, 4 Henry VII. In Wil- cooks V. Huggius, 2 Stra. 907, an action was brought on a promissory note dated July, 1719, by the executor of the execu- trix of G. W. The defendant pleaded that the action did not accrue within six years; the plaintiff replied, that the first execu- trix, in Trin. 11 Geo. I. (1725), sued out a bill of Middlesex against the defendant, returnable in the following Michaelmas Term, on which there was a continuance by non misit breve, and an alias taken out, returnable in Hilary Term following, before which the executrix died, and made the plain tiff her executor, who, in Michaelmas Term, 3 Geo. II., sued out a latitat against the defendant, on which he declared; con- cluding with an averment that the cause of action accrued within six years, before suing out the first bill of Middlesex. There no reason whatever was shown for the de- 14 STATUTES OF LIMITATION. [chap. and that the statute, unless otherwise provided, applies only to a disability or disabilities existing at the time the right accrues, and that lay of the four years between the first and the last writ : and therefore the court held the replication bad by reason of that un- necessary delay, saying "that the most that had ever been allowed was a year, and that within the equity of the proviso in the statute, which gives the plaintiff a year to commence a new action, where the judg- ment is arrested or reversed; but they would not go a moment further, for it would let in all the inoonveniencies which the statute was made to avoid." And they added: " If, indeed, the second executor had been retarded by suits about the will or adminis- tration, and he had shown that in plead- ing it would have been otherwise, because then the neglect would have been accounted for." It was erroneously stated in that case that the longest time that had ever been allowed to an executor was a year: in Lethbridge ». Chapman, cited Fitzg. 171, there was an interval, of fourteen months, yet the action was held in time. Other cases of the same class are collected in Comyns' Digest, Temps, G. 17. In Hall o. Wybourn, Carth. 136, to assump- sit for goods sold, the defendant pleaded non assumpsit infra sex annos. The plain- tiff replied, that the defendant, at the time of the promise in the declaration men- tioned, was resident in parts beyond the seas, and out of the allegiance of the king and queen, and there continued until, &c. , on which day, and not before, he volun- tarily returned into this realm ; and that the plaintiffs bill was exhibited against him within a year after his return. It was held, on demurrer, that the replication was ill, on the ground that the plaintiff had neglected his proper remedy, by not filing an original and prosecuting the defendant to outlawry, which, though it should be reversed on his return, yet the plaintiff might then have brought another original by journeys' accounts, and thereby taken advantage of his first writ. In Joliffe v, Pitt, 2 Vern. 694, the plaintiff had lent W. a sum of money on a note dated in August, 1689, with interest at £1 per cent per month. W., then residing beyond seas, paid two years' interest, but then failed, and went to the East Indies, where he died in February, 1706, having in the interval acquired considerable property, and made a will appointing the defendant Pitt his executor. In April, 1702, the plaintiff sued out a latitat against W., which was continued on the roll till 1706. In Octo- ber, 1710, the defendant Pitt came over to England, and proved the will. In May, 1714, the plaintiff filed his bill against him and other creditors of W., for whom it was insisted that the plaintiff was barred by the statute of limitations. It is said to have been agreed that the plaintiff being abroad till. 1702, and then suing out his writ, with continuances until the debtor's death, all that time was well excused ; and also until his will was proved and there was an executor, since laches could not be at- tributed to the plaintiff for not suing, while there was no executor against whom he could bring his action ; the only objection made on the defendant's part being, that the plaintiff ought to have revived the former action at law, and not have filed a bill in equity. Lord Cowper held that the statute did not apply, and de- cided in favor of the plaintiff. See Granger V. George, 5 B. & C. 149, 7 D. & R. 729 ; Short v. McCarthy, 3 B. & Aid. 626 ; Howell v. Young, 5 B. & C. 259. In Murray y. East India Company, 5 B. & Aid. 204, it was held that, in an action by an administrator on a bill of exchange pay- able to the intestate, but accepted after his death, the statute did not begin to run until administration granted. Abbott, C. J., says: "It cannot be said that a cause of action exists unless there be also a person in existence capable of suing." In this case Mr. Hope had despatched some bills to an agent in England, and himself em- barked in a vessel for England ; the vessel was lost, and he perished with it. His agent in England, acting under a power of attorney given by Mr. Hope before he died, presented the bills to the East India Com- pany, and they Were paid to the agent. It turned out that the agent had exceeded his authority in indorsing the bills ; and it was held that the East India Company could not defend themselves - against another action on the bills by the administrator of §6-J BTJLE W'HEK TIME BEGINS TO EUN. 15 no after-accruing disability will stop its operation.^ The rule may be Mr. Hope, on the ground that more than six years had elapsed since the date of the bills, because the right of action did not exist in the lifetime of Mr. Hope, therefore there was no power of bringing an action until administration was taken out : the action never accrued to anybody until the letters of administration were granted ; from that time, therefore, according to the words of the statute, the statute began to run. SkeiBngton o. Whitehurst, 3 Y. & Col. 34. In Webster v. Webster, 10 Yes. 93, a plea of the statute was allowed, because Lord Eldon held the fair construction of the allegations in the bill to be, that the defendant had possessed himself of the personal estate of the debtor (in whose lifetime the debt had accrued), and might therefore have been sued within six years of the death as executor de son tort. In Perry v. Jenkins, 1 My. & C. 114, a suit for an account of rents had become abated by the plaintifTs death before decree, and his administrator more than six j'ears after- wards filed a bill of revivor, to which the defendant pleaded the statute of limita- tions, but did not state in his plea that six years had elapsed since the representa- tion taken out to the original plaintiff. The plea was overruled. In Douglas v. Forrest, 4 Bing. 686, it was held, that where the testator resided and died abroad, his ex- ecutor in England might be sued at any time within six years after his taking out probate. In that case the debtor never returned from beyond seas ; therefore the plaintiff might have sued him at any time dnring his life ; and so might sue his ex- ecutor at any time during six years after he was appointed executor. In Durore v. Jones, 4 T. R. 300, it was held that when once the five years allowed tq an infant to make an entry for the purpose of avoiding a fine have begun, the time continues to run notwithstanding any subsequent disa- bility ; and AsHtTRST, J., there says : " If the disability be once removed, the time must continue to run notwithstanding any subsequent disability, either voluntary or involuntary ; and even if there were any distinction between the two kinds of disa- bility, the present is against the plaintiff, for the imprisonment for debt was in con- sequence of his own voluntary act." Lord Kenyon, C. J., in the same case, says : " I never heard it doubted, till the dis- cussion of this case, whether, when the statutes of limitation had begun to run, a, subsequent disability would stop their run- ning." His lordship states that to be the uniform construction of the statutes, and the generally received opinion of the pro- fession. There are indeed oases where the courts have refined for the purpose of hold- ing that the statute has not begun to run, but none which break in on the principle thus stated by Lord Kenyon. The stat- ute of the 21 Jac. I. o. 16, itself, says nothing whatever about defendants, ex- cepting in the clause giving a year after the reversal of an outlawry. The first case in which the construction of it came in question was Prideaux v. Webber, 1 Lev. 31, where it was held that a plea of the statute was a bar, notwithstanding a repli- cation that when the cause of action ac- crued, rebels had usurped the government, and none of the king's courts were open : for there was no exceptiou in the act of such a case. At the time of the Revolu- tion, again, there was an interval during which the courts were not sitting- ; and an act of Parliament, the 1 W. & M. c. 4, was passed expressly to provide for the case ; enacting that the time between the 10th of December, 1688, and the 12th of March following (a period of ninety-two days), should not be reckoned in guars impedit or the statute of limitations. If this time would have been left out of the computa- tion on the true construction of the statute of James, no legislative provision of the kind would have been necessary. The next statute which passed relating to the subject was that of the 4 Anne, c. 16, prior to which there had been decisions on the statute of James, holding the exception in section 7 to apply only to the case of plain- tiffs absent beyond seas. Hall v. Wybura, Garth. 136; Chevely v. Bond, id. 226. 74 1 Jackson o. Johnson, 5 Cow. (N. Y.) : Jackson v. Wheat, 18 Johns. (N. Y.) 40 ; Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129. 16 STATUTES OP LIMITATION. [CHAP. I. illustrated thus: If a female, not of age when the title to land by descent accrues, should marry before she becomes of age, she would not be within the saving operation of the statute except so long as her infancy existed. When she became of full age she could not set up the coverture as an excuse for not having brought her action within the time limited by the statute ; the statute having commenced to run be- fore her coverture the latter could not be tacked to the former.^ In the case last cited the statute provided that all appeals from a decree should be taken within two years from the time of the entry thereof. The decree appealed from was rendered on the 17th of April, 1878, and the appeal was not taken until the 6th of September, 1883. The appellant set up the disability of imprisonment as cause for the delay ; this was held insufficient to excuse the delay and prevent the operation of the statute. Bbadlet, J., said: "As more than five years elapsed after the entry of the decree in this case before the appeal was taken, of course the appeal was barred by lapse of time unless the appellant was within one of these exceptions. He states in his petition of appeal, and the fact is not disputed, that being sued in the city of New York upon the decree appealed from, and judgment being rendered against him, his body was taken in execution, and on the 7th of Feb- ruary, 1879, he was thrown into the county jail of New York, where he has ever since remained, and is now kept in close confinement. As only ten months elapsed after the entry of the decree when the appel- lant was thrown into prison, and as he has been in prison ever since, he contends that two years, exclusive of the term of his imprisonment, had not expired when his appeal was taken." This answer cannot avail the appellant if that construction be given to the statute which has almost uniformly been given to similar statutes in England and this country. The construction referred to is, that some or one of the disabilities mentioned in the proviso, must exist at the time the action accrues, in order to prevent the statute from run- ning ; and that after it has once commenced to run, no subsequent dis- ability will interrupt it. This was the rule adopted in the exposition of the statute of 21 Jac. 1, c. l6, the English statute of limitations in force at the time of the first settlement of most of the American colonies. It is provided by the seventh section of that statute. " That if any person entitled to britlg any of the personal actions therein mentioned, shall be ' at the time of any such cause of action Murray v. East India Company and Gary i The doctrine that no disability which V. Stevenson show that no cause of action, did not exist at the time when the right of within the meaning of the statute, accrues, action accrued can he relied upon to avoid until there is somebody capable of suing, the operation of the statute, is well and and somebody capable of being sued ; but ably discussed by Mk. Justice Bradley if a cause of action has once accrued, it in McDonald v. Hovey, 110 IT. S. 620. cannot be stopped, except in some one of the modes provided in the statute. § 6.] MUST BE PLEADED. 17 given or accrued,' within tlie age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond tlie seas, sucii person shall be at liberty to bring the same actions within the times limited \>y the statute, after his disability has terminated." It is true that the express words of this statute refer to disabilities existing " at the time " the cause of action accrues, and do not literal!}' ' include disabilities arising afterwards. The courts, however, held that such was not only the literal, but the true and sensible meaning of the act ; and that to allow successive disabilities to protract the right to sue would, in many cases, defeat its salutar}' object, and keep actions alive perhaps for a hundred years or more ; that the object of the statute was to put an end to litigation, and to secure peace and repose ; which would be greatly interfered with and often wholly subverted, if Its operation were to be suspended by ever}- subsequently accruing disability. A verj' exhaustive discussion of the subject had arisen, in the time of Queen Elizabeth, in the case of Stowell v. Zouch,'' in, the construction of the statute of fines, passed in 4 Hen. 7, c. 24, which gave five years to persons not parties to tlie fine to prosecute their right to the land ; but if they were women covert, or persons within the age of twenty-one years, in prison, or out of the realm, or- not of whole mind at the time of the fine levied, the}- were allowed five years to prosecute tiicir claim after the disability should .cease. In that case, a pei-son having a claim to land, died three years after a fine was levied upon it without commencing any suit, and leaving an infant heir ; and it was held that the heir could not claim the benefit of his own in- fancy, but must commence his suit for the land within five years from the levying of the fine ; because the limitation commenced to run against, his ancestor, and having once commenced to run, the infancy of the heir did not stop i.t. The same construction was given, as already stated, to the general statute of limitations of 21 Jac. 1, before re- ferred to. In an early English case,= Lord Kenvon said : " I confess I never heard it doubted until the discussion of this case,, whether, when any of the statutes of limitations had begun to run, a subsequent disability would stop their running. If the disability would have such an operation on the construction of one of those statutes, it would also on the others. I am very clearly of opinion on the words of the statute of fines, on the uniform construction of all the statutes of limitations down to the present moment (1791), and on the generally received opinion of the profession on the subject, that this question ought not now to be disturbed. It would be mischievous to refine and make distinctions between the cases of voluntary and involuntary dis- abilities (as was attempted in that case) ; but in both cases, when the disability is once removed, the time begins to run." To the same eflTect are Doe v. Jesson,' and many cases in this coun- 1 Plowd. 353 a. ' 6 East, 80. a Doe V. Jones, 4 T. E. 300. VOL, I. — 2 18 STATUTES OP LIMITATION. [CHAP. I. try referred to in Angell on Limitations, qua supra, and in "Wood on Limitations, sect. 251. Li a case that came to this court from Kentuckj', in 1816, Ch. Justice Marshall said : " The counsel for the defendants in error have endeavored to main- tain this opinion by a construction of the statute of limitations of Ken- tucky. They contend, that after the statute has begun to run, it stops, if the title passes to a person under anj' legal disabilitj-, and recom- mences after such disabiUty shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construction of which has been well settled ; and it is to be construed as that statute, and all other acts of limitation founded on it, have been construed." ^ And in the subsequent case of Mercer's Lessee v. Seldon," the court took the same view in a case arising in the State of Virginia, in which the right of action accrued to one Jane Page, an infant within the ex- ception of the statute ; and it was insisted that her marriage before she was twenty-one added to her first disability (of infancj-) that of cover- ture. But the court held otherwise, and decided that only the period of infancy, and not that of coverture, could be added to the time allowed for bringing the action. The same doctrine was held in the cases cited below.' In most of the State statutes of limitation the clauses of exception or ■provisos in favor of persons laboring nnder disabilities employ terms equivalent to those used in the English statute, expressly limiting the exception to cases of disability existing when the cause of action accrues. But this is not always the case. The statutes of New York in force prior to the Kevised Statutes limited the time for bringing real ■actions to twentj--five years after seisin or possession had, and the proviso in favor of persons laboring under disabilities was in these words : — ' " Provided always. That no part of the time during which the plain- tiff, or person making avowry or cognizance, shall have been within the age of twent3--one years, insane, /ewe cowers, or imprisoned, shall be taken as a part of the said limitation of twenty-five j'ears." * It will be observed that this proviso is stronger in favor of cumulative anil subsequently accruing disabilities than tiiat of the act of Congress which we are now considering ; yet the Supreme Court of New York, and subsequently this court, gave it the same construction in reference to such disabilities as has always been given to the EngUsh statute of 1 Walilen v. Gratz'a Heirs, 1 Wheat. Leigh, 495 ; Demare.st «. 'Wynkoop, 3 U. S. ) 292. Johns. Ch. 129 ; Buuce v. Wolcott, 2 . 2 1 How. (U. S.) 37, 51. Conn. 27. " Eager ii. Commonwealth, 4 Mass. < 1 Rev. Laws, 1813, p. 185, sec. 2 ; 2 182 ; Fitzhugh v. Anderson, 2 Hen. and Greenleaf's Laws, 95, sec. 6. Mun. 306 ; Parsons i*. McCracken, 9 § 6.] MUST BE PLEADED. 19 fines and statute of limitations. In the case of Bradstreet v. Clarke,^ which was a writ of right, and was argued by the most eminent counsel of the State, it was strenuously contended that the proviso referred to, being different from' that of the English statutes in not referring to dis- abilities existing when the cause of action accrued, a different construc- tion ought to be given to it, and the disabilities named, though com- mencing subsequently, and even after the statute began to run, ought to be held to interrupt it. The court, however, did not concur in this view, but held that the coverture of the demandant occurring after the statute began to run could not be set up against its operation. Mb. Justice Sutherland said : — " It is believed that the same construction has uniformly been given to this proviso in this respect as to that in relation to possessory actions (contained in a different section of the act), that where the statute has once begun to run a subsequently accruing disability will not impede or suspend it." Although the case did not finally turn on this point, the attention given to it by counsel and the apparent unanimity of the court, then consisting of Savage, Chief Justice, and Sutherland and Nelson, Justices, gave to that opinion a great deal of weight. The same question afterwards arose in this court in the case of Thorp V. Ea^^mond.'' That was an action of ejectment, used in place of a writ of rigiit, to tr^' the title to lands in New York. The plaintiff's grand- mother acquired a right of entry to the lands in 1801, but was then insane, and remained so till her death in 1822. Her only daughter, and heir, was a married woman,, and remained such till the death of her husband in 1832. The action was not commenced until 1850. The plaintiff contended that, under the proviso referred to, the daughter's disabilitj' of coverture ought to be added to tlie mother's disability of insanity ; and that this would save tlie action from the bar of the statute, whether under the limitation of twenty-five years or that of twenty years. But the court held that the disabilities could not be con- nected in this waj'. Mk. Justice Nelson, delivering the opinion, and having shown that the proposed cumulation was inadmissible under the third section of the act, considering tlie action as one of ejectment, dis- posed of the other view as follows : — " But it is supposed that the saving clause in the second section of this act, which prescribes a limitation of twent^'-flve years as a bar to a writ of right, is different, and allows cumulative disabilities ; and as ejectment is a substituted remedy in the court below for the writ of right, it is claimed the defendant is bound to make out an adverse pos- session of twentj'-flve j-ears, deducting successive or cumulative dis- abilities. This, however, is a mistake. The saving clause in this second section, though somewhat different iu phraseology, has received » 12 Wend. 602. ^ 16 How. U. S. 247. 20 STATUTES OF LIMITATION. [CHAP. I. the same construction in the courts of New York as that given to the third section." (Citing the case of Bradstreet v. Clarke, in the decision of which the learned justice had participated.) The statute of limitations of Texas is another instance in which language is used quite different from that of the English statute. After presci'ibing various limitations, the eleventh section provides for dis- abilities, as follows : — " No law of limitations, except in the cases provided for in the eighth section of this act, shall run against infants, married women, per- sons imprisoned, or persons of unsound mind, during the existence of their respective disabilities ; and when the law of limitations did not commence to run prior to the existence of these disabilities, such per- sons shall have the same time allowed them after their removal that is allowed to others by this and other laws of limitations now in force." Oldham & White, art. 1352. According to the literal sense of this section, if one disability should prevent the statute from running until another supervened, the latter would be equally effectual to interrupt it. But the Supreme Court of Texas, in White y. Latimer,^ held otherwise, and decided that one disability cannot be tacked on to another ; but that the long- established rule in construing statutes of limitations must be applied. The court saj^ : — " The 11th section of the statute is not in its terms materiallj- different from the exception contained in the statute of James, and cannot claim a different construction from that ; and a departure from the rule so Jong and well established, that it applies to the particular disability existing at the time the right of action accrued, would introduce the evil so strongly deprecated by the most eminent English and American judges, of postponing actions for the trial of rights of property to an indefinite period of time, by the shifting of disabilities, from infancy to coverture, and again from coverture to infancy, an evil destructive Of the best interests of society, and forbidden bj' the most sound and imperious policy of the age." The authority of these cases goes far to decide the one before us. The proviso in the New York statute certainly was more general in its terms in describing the disabilities which would stay the opei-ation of the statutes — described them more independentlj' of the time when the cause of action accrued — than the act of Congress under consideration ; and the courts, in giving it the construction they did, seemed to be largely influenced by the established interpretation given to similar statutes in pari materia, without having in the statute construed any express words to require such a construction. But in the case before us, the fair meaning of the words leads to the same result. The lan- guage is as follows : — " No judgment, decree, or order . . . shall be reviewed in the 1 12 Tex. 61. § 6.] MUST BE PLKADED. 21 Supreme Court, . . . unless the writ of error is brought or the appeal is taken -within two years after the entry of such judgment, decree, or order : Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted or such an appeal maj- be taken within two years after the judgment, decree, or order, exclusive of the term of such disability." "is an infant," when?^ ''Is an insane person, or imprisoned," when? Evidently, when the judgment, decree, or order is entered. That is the point of time to which the attention is directed. The evident meaning is, that if the party is an infant, insane, or in prison when the judgment or decree is entered, and therefore when he or she becomes entitled to the writ of error or appeal, the time to take it is extended. In all the old statutes this was expressed in some form or other ; this was their settled meaning. It will also be deemed to be the meaning of this statute unless its language clearly calls for a different meaning. But, as seen, it does not. Section 1008 of the Revised Statutes was taken directly from the "Act to further the administration of justice," approved June 1, 1872, and is a mere transcript from the second section of that act. 17 Sta^. 196. But this was a revision of the twenty-second section of the Ju- diciary Act of 1789, and if we turn back to that section we shall find that, with regard to the point under consideration, its language was, in effect, substantially the same as that of the present law. It was as follows : — " "Writs of error shall not be brought but within five years after ren- dering or passing the judgment or decree complained of; or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, ex- clusive of the time of such disability." " 5e an infant," when? '^ Be a feme covert, non covert, non com- pos, or imprisoned," when f The sa.me answer must be given as be- fore, namely, when he or she becomes entitled; that is, when the judgment or decree is entered. The phraseology of the act of 1872, and of section 1008 of the Re- vised Statutes, is so nearly identical with that of the twenty-second section of the act of 1789, in reference to the point under considera- tion, that we must presume that they were intended to have the same construction, and the act of 1789 contains no language which requn-es that it should have a different construction from that which had long been established in reference to all the statutes of limitation then known, whether in the mother country or in this. On the contrary, as we have seen, the terms of the act of 1789 fairly call for the same con- struction which had for centuries prevailed in reference to those statutes. . J . , -1 • It is a received canon of construction, acquiesced in by this 22 STATUTES OP LIMITATION. [CHAP. T. court, " That where the English statutes — such, for instance, as the statute ' of frauds and the statute of limitations — have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority." ^ And even where inadvertent changes have been made by incorporat- ing different statutes together, it has been held not to change their original construction. Thus, in New Jersey, where several English statutes had been consolidated, a proviso in one of them, broad enough in its terms to affect the whole consolidated law, was held to affect only those sections with which it had been originally connected. Chief Justice Green said : — " Where two or more statutes, whose construction has been long settled, are consolidated into one, without any change of phraseology, the same construction ought to be put upon the consolidated act as was given to the original statutes. A different construction ought not to be adopted if therebj' the policy of the act is subverted or its mate- rial provisions defeated." ^ So, upon a revision of statutes, a different interpretation is not to be given to them without some substantial change of phraseologj', — some change other than what may have been necessarj'^ to abbreviate the form of the law. As said bj' the New York Court for the Correction of Errors : ° — " Where the law antecedently to the revision was settled, either by clear expressions in the statutes or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of law, unless such phraseology evidently purports an intention in the legislature to work a change."^ So the supreme court of Alabama has held that the legislature of that State, in adopting the code, must be presumed to have known the judicial construction which had been placed on the former statutes ; and, therefore, the re-enactment in the code of provisions substantially the same as those contained in a former statute is a legislative adoption of their known judicial construction.^ " A change of phraseology in a revision will not be regarded as altering the law where it had been well settled by plain language in the 1 Pennock v. Dialogue, 2 Pet. 1, 18 ; Thompson, 7 Hill, 77; Goddoll v. Jack- Smith's Commentaries on Stat, and Const, son, 20 Johns. 693 ; Croswell v. Crane, 7 Law, sec. 634; Sedgwick on Construction Barb. 191. "The construction will not of Stat, and Const. Law, 363. be changed by such alterations as are 2 In re Murphy, 3 Zab. 180. merely designed to render the provisions 2 Taylor v. Delancey, 2 Caines's Case, more precise." Mooers v. Bunker, 29 143,150. N. H. 421. * And see Yates's Case, 4 Johns. 317 ; '' Duramus v. Harrison, 26 Ala. 326. Theriat v. Hart, 2 Hill, 380 ; Parmelee v. § 6.] PHRASEOLOGY AND INTEEPEETATION. 23 statutes, or b}' judicial construction thereof, unless it is clear that such was the intent." * Of course a change of phraseology which necessitates a change of construction will be deemed as intended to make a change in the law.'' In view of these authorities and of the principles involved in them, and from a careful consideration of the language of the law itself, we are satisfied that it was not the intention of Congress, either in the twentj'-second section of the act of 1789, or in the second section of the act of 1872, or in section 1008 of the Revised Statutes, to change the rule which has always, from the time ^of Henry VII., been applied to statutes of limitation, namely, the rule that no disability will post- pone the operation of the statute unless it exists when the cause of action accrues ; and that when the statute begins to run no subsequent disability will interrupt it. This conclusion disposes of the case. As the appellant was free from any disability for several months after the entry of the decree ap- pealed from, the statute commenced to run at that time, and, therefore, the time for taking the appeal expired several years before it was actuallj- taken. The doctrine held in this case is so thoroughly established by the de- cisions of the courts, not only in England but also in this country, as to hardly need the citation of an authority in its support. The cases holding the doctrine are very numerous.* But if at the time when the right accrued a party is under two or more disabilities, as if she is a married woman, an infant, and insane, she may avail herself of either 1 Sedgwick on Construction (2d ed.), Frail, 1 Met. (Ky.) 35; Blackwell v. 229, note. Referring to Hughes r. Farrar, Bragg, 78 Va. 629; Grimes i;. "Watkins, 45 Me. 72; Biirnham u. Steveus, 33 N. H. 59 Tex. 133; Grigsby f. Peck, 57 Tex. 247 ; Overfield v. Sutton, 1 Met. (Ky.) 142 ; Bectou v. Alexander, 27 Tex. 659 ; 621 '; McNamara v. Minnesota Central Marsteller v. Marsteller, 93 Penn. St. 350; Railway Company, 12 Minn. 388 ; Conger Hollingshead's Appeal, 103 Penn. St. 158; V. Barker, 11 Ohio St. 1. Arnole's Appeal, 115 Penn. St. 356: Doug- 2 Young. D. Dake, 1 Seld. (N. Y.) las w. Irvine, 126 Penn. St. 643 ; Reiser's ^gg Appeal, 124 Penn. St. 80; Cozzens v. Fra- s Swearincen v. Robertson, 39 "Wis. nan, 30 Ohio St. 491 ; Hinde v. "Whiting, 462 • Jones c. Lemon, 26 W. Va. 629 ; 31 Ohio St. 53 ; Oliver v. Pullan, 24 Handy v. Smith, 30 W. Va. 195 ; "Wilson Fed. Rep. 127 ; Rogers v. Brown, 61 Mo. 11. Harper, 25 "W. Va. 179 ; Hogan u. 187 ; Billon v. Larimore, 37 Mo. 375 ; Kurtz, 94 U. S. 773 ; Dowell v. Tucker, Campbell v. Laclede Gas Co., 84 Mo. 352; 46 Ark 438;' McLeran v. Benton, 73 Cal. see also same case affirming the decisioTi of 329; Doyle v. "Wade, 23 Fla. 90; "Wadet). the State court, 119 U. S. 445 ; North v. Doyle 17 Fla 522 ; Downing v. Ford, 9 James, 61 Miss. 761 ; Hodges v. Darden, Dana'(Ky.), 391 ; Riggs v. Dooley, 7 B. 51 id. 199 ; "Watts v. Gunn, 53 id. 502 ; Mon (Ky.)'236 ; Clark v. Jones, 16 B. Tippin d. Coleman, 61 id. 516; Trafton «. Mon (Ky } 121 ; Scott v. Haddock, 11 Hill, 80 Me. 503 ; Bonney v. Stoughton, Ga. '258 ; Everett' v. "Whitfield, 27 Ga. 122 111. 536 ; Keil v. Healey, 84 111. 104 ; 133 ; Millingtop v. Hill, 47 Ark. 301 ; Fritz v. Joiner, 54 111. 101. Kistier v. Hereth, 75 Ind. 177 ; Clark v. 24 STATUTES OF LIMITATION. [CHAP. I. of them, and, in the language of Edmond, J.,^ " it will alwaj-s be an answer to an objector to such an election to say, the disability on which I rely is pointed out by the proviso ; it existed at the time my right or title accrued ; I have prosecuted my claim within the time allowed alter its discontinuance, and come within both the letter and the spirit of the law. But," he adds, " where a single disability only exists at the time the right accrues, and the five j'ears after the discontinuance of that disa- bility' have elapsed, the statute immediatelj' attaches, and the party so neglecting to prosecute can never avail himself of any other or super- venient disability, because the statute recognizes no other than such as actually existed, or should exist, when the right first commenced, and every after disability may be said to want, and is, in fact, destitute of that essential qualification." In an English case,'' Lord Hardwicke, in commenting upon the effect of several coexisting disabilities in one person, said : " If a man both of non-sane memory and out of the king- dom 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." ° Where a cause of action accrues in favor of the estate of a deceased person, as where by statute a right of action is given to an executor or administrator of a person killed by the negligence of a corporation, it is held that the cause of action is not complete, and consequently does not arise, until an ex- ecutor or administrator is appointed, so that the statute of limitations does not begin to run until such appointment is made.* Sec. 7. The Bar of the Statute must be interposed by the Debtor. — Another general rule of great practical importance is, that the bar of the statute must be interposed by the diligence of the debtor, and as early 1 Bnnce v. "Wolcott, 2 Conn. 34. See the statute ia arbitrary. Forster v. Pat-, also Davis v. Cooke, 3 Hawks (N. C), terson, 17 Ch.Div. 132; Kinsman u. Rouse, 608 ; Deinarest v. Wynkooi), 3 Johns. Oh. 17 id. 104 ; Jones u. Lemon, 26 W. Va. (N. Y.) 129 ; Smith v. Burtis, 9 Johns. 629 ; Amy v. Watertown, 130 U. S. 320 ; (N. Y.) 174 ; Wilsons. Kilcannon, 4 Hayw. Rowell v. Patteson, 76 Me. 196 ; Bickle v. (Tenn.) 182; Wilson ■/. Betts, 4 Den. Chrisman, 76 Va. 678 ; Fairbanks w. Long, (N. y.) 20 ; Jackson v. Johnson, 5 Cow. 91 Mo. 628 ; In re Griffith, 35 Kan. 377 ; (N. Y. ) 74. Chicago, &c. R. K. Co. v. Jenkins, 103 111. Blackwell v. Bragg, 78 Va. 529 ; North 588 ; Miller v. Lesser, 71 Iowa, 147 ; V. James, 61 Miss. 761 ; Sims v. Bardoner, State v. Pasey, 82 Ind. 543 ; Kendall v. 8G Ind. 87 ; Sims v. Everhardt, 102 U. S. United States, 107 U. S. 123. 300. Of course it will be understood that ^ gt„t i). Mellish, Atk. 610. all disabilities which save the operation of ' Butler v. Howe, 13 Me. 397 ; Keeton the statute of limitations are those which v. Keeton, 20 Mo. 530 ; Jordan v. Thorn- are created by the .statute itself; and un- ton, 7 Ga. 617 ; Demarest v. Wynkoop less the statute makes a certain disability ante. a cause for suspending the operation of -the * Andrews v. Hartford, &c. R. R. Co., statute, there can be no suspension, how- 34 Conn. 57 ; Hobart u. Conn. Turnpike ever great may be the hardships which Co., 15 Conn. 145. ensue. In all its aspects and operations §7.] MUST BE PLEADED. 25 as possible,! and usually, unless otherwise provided by statute, on the pleadings previously to the hearing, and that it will not be raised by the court unsolicited ; '^ and, also, that the protection afforded by the '■ In France, the objection may be taken at any stage_ of the proceedings. Code Civil, 2224. And such also is the provi- sion in Louisiana. 4 Griffith's Annual Law Eeg. 686. But generally in this coun- try it must be interposed at the earliest opportunity. Mclver v. Moore, 1 Oranch ( U. S. , 90 ; Wilson v. Tubervine, id. 492 ; Marsteller v. McLean, id. 55 ; Thompson V. Affick, 2 id. 46 ; Beatty v. Van Ness, id. 67. If, however, a new declaration or complaint is filed, setting up a new cause of action, the statute runs until such new declaration is filed, and may be pleaded thereto. Holmes o. Trout, 7 Pet. (0". S.) 171 ; Miller v. Mclntyre, 6 id. 61. And if new parties are brought in as de- fendants, the statute runs as to them until they are actually cited in, and they may plead it, although, as to the original de- fendants, it has not run. Alexander v. Pendleton, 8 Cranch (U. S.), 462; Miller V. Mclntyre, ante. And the same rule has been applied where the declaration in an action of ejectment has been amended by adding a new demise in the name of another party asserting a different title. Sicard v. Davis, 6 Pet. (U. S.) 124. In an early English case it was held that the statute was an absolute bar to a claim upon which it had run, and consequently that it oper- ated as a bar to an action by its own force, and without being pleaded. Brown v. Hancock, Cro. Car. 115. But the question coming before the court soon afterwards, the judges were equally divided on the question. Frankersley v. Robinson, id. 163. And still later it became well settled that a person could not avail himself of the statute unless he set it up by plea. Puckel V. Moore, Vent. 191 ; Gould v. Johnson, 2 Ld. Raym. 838 ; Kirkman v. Siboni, 4 M. & W. 339 ; Brickett v. Davis, 21 Pick. (Mass.) 404 ; llobbins v. Harvey, 5 Conn. .335 ; Pegram v. Staltz, 67 N. C. 144 ; Pearsall v. Dwight, 2 Mass. 87 ; Chambers v. Chambers, 4 G. & J. (Md. ) 349 ; Parker v. Irwin, 47 Ga. 405 ; Merry- man V. State, 5 H. & J. (Md.) 425 ; Jack- son V. Varick, 2 Wend. (N. Y.) 294. And even in those States where it is held that a, person may avail himself of the statute by demurrer, it is held that, unless the bar appears from the declaration, the statute must be pleaded. Davenport v. Short, 17 Minn. 24 ; Frosh v. Sweet, 2 Tex. 485 ; Sturges v. Burton,, 8 Ohio St. 215 ; Lewis v. Alexander, 51 Tex. 578. That the statute must be pleaded, see Capen V. Woodrow, 51 Vt. 106 ; Hines v. Potts, 56 Miss. 346. But it has been held that in actions against the government, under a statute authorizing a claimant to sue it if his action was brought within six years from the time the right of action accrued, the courts were bound to take notice of the statute, and that the statute itself in such cases is in effect a plea of the statute of which the courts are bound to take notice. But in such cases it will be ob- served that the statute confers the right of action and subjects the right to a condi- tion, viz. that suit shall be brought within a certain time ; and, unless the condition is not complied with, the right does not ex- ist. Kendall v. United States, 14 Ct. of CI. (U. S.) 122. ^ To be available, the statute must be pleaded or interposed as a bar by answer, where such practice prevails, or by notice under the general issue ; and the proper plea, where the statute is interposed to bar an action upon a simple contract, is non accrevit infra sex annos. Parker v. Kane, 4 Wis. 1 ; Peck v. Cheney, id. 249 ; Hum- phrey V. Persons, 23 Barb. (N. Y.) 313 ; Young ». Epperson, 14 Tex. 618 ; Taze- well V. Whittle, 13 Gratt. (Va.) 329 ; Hav- lin V. Stevenson, 30 Iowa, 371 ; Offut v. Henderson, 1 Cr. (U. S. C. C.) 553 ; The Swallow, Olo. (U. S.) 334; Neale v. Walker, 1 Cr. (U. S. C. C.) 57 ; Mclver u. Moore, id. 90 ; Gardner v. Lindo, id. 78 ; Rivers v. Washington, 34 Tex. 267 ; Rob- bins V. Harvey, 5 Conn. 335 ; Pegram c Stoltz, 67 N. C. 144 ; Wisecarver v. Kin- caid, 83 Penn. St. 100 ; Parker v. Irwin, 47 Ga. 405 ; Robinson v. Allen, 37 Iowa, 27 ; Tarbox v. Adams County, 34 Wis. 658. In Eetzer v. Wood, U. S. S. C, Nov., 1883, it was held that in the ab- sence of a statutory rule to the. contrary, 26 STATUTES OF LIMITATION. [chap. I. statute may be waived by the debtor, the best possible proof of such waiver being a payment. It is probable, however, that this rule is applicable solely to cases where by the statute the remedy only, not the right, is destroyed.^ the defence of a' statute of limitations, which is liot raised either in pleading, or on the trial, or before judgment, cannot be availed of. In a suit to recover back in- ternal revenue taxes, tried by the Circuit Court without a jury, the court having found the facts, and held that the taxes were illegally exacted, but that the suit was barred by a statute of limitation, ren- dered a judgment for the defendant. On a writ of error by the plaintiff, the record not showing that the question as to the statute of limitations Was raised by the pleadings, or on the trial, or before judg- ment, and the conclusion of law as to the illegality of the taxes being upheld, the court reversed the judgment and directed a judgment for the plaintiff to be entered below. Storm v. United States, 94 U. S. 76 ; Upton V. McLaughlin, 105 id. 640. In New York, under the code, the statute must be set up by way of answer. Sands v. St. John, 36 Barb. (N. Y.) 628 ; Bilirin v. Bihrin, 17 Abb. Pr. (N. Y.) 19 ; Cotton v. Manurer, 3 Hun (N. Y.), 552. And the plaintiff cannot avail himself of the statute against a counter-claim unless he replies the statute thereto. Clinton v. Eddy, 1 Lans. (N. Y. ) 61. But he may interpose the stat- ute against a set-off not the subject of counter-claim, although it is not specially pleaded. Mann v. Palmer, 2 Keyes (N. Y. ), 177 ; Jacks o. Moore, 1 Yeates (Penn.), 391. In Kentucky, under the code, matters in avoidance of a plea of the statute need not be pleaded, but may be proved. Harris v. Moberly, 5 Bush (Ky.), 556. In all cases, unless otherwise provided by statute, the statute of limita- tions must be specially pleaded, or it is treated as waived. • Bordens v. Murphy, 78 111. 81 ; Hitchcock v. Harrington, 6 Johns. (N. Y.) 290; Sears c. Shafer, 6 N. Y. 268 ; Fairchild's Case, 24 Wend. (N. Y.) 381; Boggs V. Bard, 2 Eawle (Penn.), 102 ; Heath v. Page, 48 Penn. St. 130 ; GuUick V. Loder, 2 N. J. Eq. 68. And when the statute is pleaded, the plaintiff must reply specially. Webster v. Newbold, 41 Penn. St. 482 ; Brand v. Longstreet, 4 N. J. L. 325 ; Crosby v. Stone, 2 id. 988. In Minnesota, the statute must be pleaded, unless the complaint on its face clearly shows that it has run. Davenport «. Short, 17 Minn. 24. In Arkansas, while under the Code, § 111, it is optional with a party, where the claim appears to be barred, upon the face of the declaration or complaint, to set up the statute either by demurrer or answer, yet if the complaint shows on its face that the claim is not barred when it in fact is, the defence can only be made by answer. McGehee v. Blackwell, 28 Ark. 27. In some of the States it is held that, where the plaintiff's pleadings show on their face that his demand is barred by statute, a demurrer showing the fact can be interposed. Hudson v. Wheeler, 34 Tex. 356. But the bar of the statute must appear affirmatively from the plain- tiff's pleadings. Moulton v. Walsh, 30 Iowa, 361. And the statute can never be interposed by a general demurrer. Rivers V. Washington, ante. In Ohio, where the bar of the statute appears upon the face of the complaint, advantage of it may be taken by demurrer; but the demurrer is waived by a subsequent answer to the merits. Voae v. Woodford, 29 Ohio St^ 245; Collins v. Mack, 31 Ark. 684. In North Carolina, advantage of the statute cannot be taken by demuiTer, but must be set up in the answer. Green v. N. C. E. K. Co., 73 N. C. 524. 1 In Perkins v. Guy, 55 Miss. 153, it was held that the statute of the locus con- tractus could not be pleaded in bar in a foreign jurisdiction, where both pai-ties were resident in the place where the con- tract was made, during the whole statutory time, unless such statute goes to the ex- tinction of the right itself, rather than to the extinction of the remedy. But that, where the right of action is extinguished by the statute of the locus contractus, effect will be given thereto by the lex fori. In Iowa, by statute, the statute of limitations of another State is a bar to an action upon § 7.] MUST BE PLEADED. 27 Not onlj- must the statute be pleaded, but also, when it is set up in bar of the action, the plaintiff must reply thereto,' and set up such matters as he relies upon in avoidance of its operation,^ and in such a manner as to apprise the defendant of the issue intended to be raised, •whether of denial or avoidance ; ^ and the plaintiff will be precluded from giving any matter in evidence to avoid the statute, not specially embraced in his plea. Thus, under a replication that the defendant did assume and promise within six years, it has been held that the plaintiff could not show that the defendant had promised not to plead the statute." So where a defendant, in his answer, instead of alleging that the cause of action did not accrue within the prescribed period before the commencement of the action, alleged that he did not at any time within the prescribed period before the commencement of the action under- take, promise, or agree, &c., it was held insufficient to interpose the bar of the statute.* And the same is true as to fraud, absence from the State, or indeed any matter that goes in avoidance of the statutory bar. ° Where a right is not of common law origin, but is given by statute and the statute also prescribes the time within which the right must be en- forced, a complaint which on its face shows that the time limited has expired will be insufficient on demurrer." But, where the statute merely the. claim iu that State. Davis v. Harper, after presentation and during which time 48 Iowa, 513. InGans v. Frank, 36 Barb, the claimant is prohibited from bringing (N. y. ) 320, a doctrine similar to that suit, has also elapsed, held in the Mississippi case, supra, was Diefeuthaler v. Mayor, &e.. Ill N. Y. held. 331. 1 Crosby v. Stone, 2 N. J. L. 988 ; Van ^ Jarvis v. Pike, ante. The plea must Dike V. Van Dike, 4 N. J. Eq. 289 ; Jarvis be interposed before issue is joined, and V, Pike 11 Abb. Pr. (N. Y.) N. s. 398; Ford this is the case even when a matter is re- V. Babcock, 2 Sandf. (N. Y. S. C.) 518; ferred. But if matters are brought up by Witherup v. Hill, 9 S. & R. (Penn.) 11 ; the plaintiff, of which the defendant first Webster v. Newbold, 41 Penn. St. 482 ; had notice on the trial before a referee or McKelvey's Appeal, 72 id. 409. auditor, to such matters the plea may then In Jex V. Mayor, &c. of City of N. be interposed, either orally or in writing, Y. Ill N. Y. 389, it was held that the by leave of the referee or auditor. When six years' statute of limitation applies to a a defendant sets up a counter-claim, the cause of action to recover back the amount plaintiff must plead the statute thereto, of an assessment for a local improvement and cannot for the first time set it up paid to the city of New York, where the before the referee, and the referee has no assessment was void for want of jurisdic- power to authorize the filing of such a plea, tion ; and it is wholly unnecessary in such Kipley v. Corwin, 17 Hun (N. Y.), 597. a case to set aside the assessment, the cause s McCulloch v. Norris, 6 Penn. St. of action is one of a legal nature only. 285. In pleading the statute, it is sufficient * McCollister v. Willey, 52 Ind. 382. to aver that more than six years have ^ Sevan v. CuUen, 7 Penn. St. 281 ; elapsed since the cause of action accrued ; King v. Baxter, 7 PhUa. (Penn.) 186. See it is not necessary to aver that, in addition post, Pleadings. to the six years, the thirty days allowed « Laird v. Laird, 30 Md. 171. the city by its charter, to pay the claim 28 STATUTES OF LIMITATION. [CHAP. I. bars the remedy upon a right which exists at the common law, the statute, must be pleaded.'' In some of the States it is held, that when the complaint on its face shows that the statute has run, it ma3' be availed of by demurrer.^ In Iowa, it was held, that the defence of the statute cannot be raised by demurrer.^ In Alabama, it is held, that when the bill or complaint seeks to enforce a claim which on its face is barred by the statute of limita- tions, but avers partial payments which avoid the bar, the defence of the statute cannot be talien bj' demurrer.* And there would seem to be no good reason vihy this rule should not be universal ; but if no demurrer is filed, and no plea setting up the statute, it cannot be availed of as a defence,^ as only those pleading the statute can avail themselves of it in defence.' In Georgia, it is held, that where it is apparent from the face of the declaration that the suit is barred by the statute, it will be dismissed on motion. As the statute is a purelj' per- sonal privilege, it follows, as a matter of course, that no one can avail themselves of that privilege except the person who elects so to do by setting up the statute as a defence ; and the court cannot of its own motion interpose a plea of the statute.' But the rule that the statute must be pleaded applies only where there is an opportunit}' to plead it.* And the court maj', in its discretion, allow an amendment setting up the statute as a defence.' But as there is serious danger 1 Cooke V. Chambers, 67 Ind. 107. applicable, cannot have the benefit of one 2 Wilt V. Buchtel, 2 Wash. (U. S. ), 417; not pleaded. Thompson v. Parker, 68 Ala. 387 ; Devor ' Smith v. Hutchinson, 78 Va. 683. V. Kerick, 87 Ind. 337 ; Budd v. Walker, 29 Sanger v. Nightengale, 122 U. S. 176 ; Hun N. Y.), 344; Ilett v. Collins, 103 Ewell v. Daggs, 108 U. S. 143. In this 111. 74 ; Upton v. Steele, 2 Wy. 54 ; case the court said that, although a subse- Upton V. Mason, 2 id. 55 ; St. Louis, quent purchaser might set up a plea of the &c. R. R. Co. u. Brown, 4 S. W. (Ark.) statute, the plea must show that the action 781. is barred as between the parties to the ' s State V. Melntyre, 58 Iowa, 72. See debt, because as the owner of the equity of also State v. Spencer, 70 Mo. 314. redemption it is that debt he has to pay. * Cameron v. Cameron, 82 Ala. 392 ; The statute does not operate as a. dis- Manning v. Dallas, 15 Pac. Rep. (Cal. ) 34 ; charge of the debt, but operates as a mere Walker v. Flemming, 37 Kan. 171 ; Hef- limitation upon the remedy preventing the fernan v. Howell, 90 Mo. 344. creditor from enforcing his claim after the 5 Bannon v. Lloyd, 64 Md. 48 ; Cother- statutory period has elapsed, provided the man v. Cotherman, 68 Mich. 465 ; Ward debtor sees fit to avail himself of it. The V. Walkers, 63 Wis. 39 ; Cookseyu. R. R. statute does not destroy the right of ac- Co., 17 Mo. App. 172 ; Childress v. Grim, tion, but only defeats a remedy for the 57 Tex. 56 ; Bellville Savings Bank v. enforcement of the claim. Harris r. Gray, Winslow, 30 Fed. Eep. 488 ; Sanger v. 49 Ga. 585 ; Parker v. Erwin, 47 Ga. 2 ; Nightengale, 122 U. S. 176. Baker v. Bush, 25 Ga. 594 ; George v. 5 Bannon v. Lloyd, ante ; Bridgforth ». Gardiner, 49 Ga. 491. Payne, 62 Miss. 777. 8 Dreutzer v. Baker, 60 Wis. 179. In this case it was also held that a de- " Smith v. Dreigert, 61 Wis. 222. fendaut, having relied on the statute not § 7. J PART OP LEX FOEI. 29 that the exercise of this discretion may be abused, the courts will only exercise it in extreme cases. ^ In the case last cited it was held, that where a person pleads the statute by way of defence, he must be presumed to intend to plead the statute applicable to his case. But in a case cited from Mississippi,' it was held, that where a defendant relied on a statute not applicable, he cannot have the benefit of one not pleaded which might be applicable. Sec. 8. The Law of Limitations a Part of the Lex Fori. — It is a well-settled rule, that personal contracts are to be interpreted by the law of the place where they are made ; and it is a rule equally well settled, that remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted, and not by the law of the place of the contract. The reason of this rule, according to Stoet, J.,' is obvious. " Courts of law," says he, " are instituted by every nation for its own convenience and benefit, and the nature of the remedies, and the time and manner of the proceedings, are regulated by its own views of justice and proprietj-, and fashioned by its own wants and customs. It is not obliged to depart from its own notions of judicial order from mere comity to any foreign nation. As a rule, statutes of limitation are to be considered to fall within these remarks. They go ad litis ordinationem, not ad litis decisionem. In cases, therefore (except where provision is otherwise made by statute), where an action is brought in one country or State upon a contract made in another, a plea of the statute of limitations existing in the place of contracts is not a good bar, but a plea of the statute existing in the country or State where the action is brought, is." * This rule is in conformity with the universal 1 Morgan v. Bishop, 61 Wis. 407. by the foreign law, by the happening of ^. Bridgforth v. Payne, 62 Miss. 777. certain events. But here there is only an ' In Le Roy v. Crowningshield, 2 Mas. extinction of the remedy in the foreign (U. S.) 151. court, according to the law stated to be * In Duplex v. De Koven, 2 Vem. 540, received there, but no extinction of the is to be found the first authority that stat- right ; and there is no law or authority iites of limitation go ad litis ordinationem that where there is an extinction of the and not ad litis decisionem. In that case, remedy only in the foreign cou];t, that shall a bill iu ei^uity for discovery of assets and operate, by comity, as an extinction of the satisfaction of the plaintiff's debt, which remedy here also. If it goes to the extinc- was a judgment obtained in France, was tion of the right itself, the case liiay be brought. The defendant set up the Eng- different." Campbell u. Stein, 8 Dowl's lish statute of limitations in bar of the Par. 116. The uniform administration of claim, which was allowed by the Lord the law has been that the lex loci con- Keeper, and this decree was confirmed on tractus expounds the obligations of con- a rehearing. The question was made at tracts, and a statute of limitations pre- law, and LoED Ellenborough said : . " It scribing a time after which a plaintiff shall is said that parties who have contracted not recover, unless he can bring himself abroad return to this country with the within its exceptions, appertains ad tempiis same rights which they had in the country et modum actionis institudendoe, and not where they so contracted^ and, generally ad valorem contractus. Townsend u. Jame- speaking, that is so, —that is, if the rights son, 9 How. (U. S.) 407 ; United States v. of the contracting parties be extinguished Donelly, 8 Pet. (U. S.) 361, In Dasli v. Tup 30 STATUTES OF LIMITATION. [chap. I. rule that, as the statute operates merelj- upon the remedy, the law of the /oru/n, and not the law of the situs of the contract, controls.^ But, per, 1 Cai. (N". Y.) 402, in an action upon a note, the statute of limitations of Kew York was pleaded, and the plaintiff replied that the note was made in Connecticut, where the statute was seventeen years, whereas in New York it was only six years. The court held this replication bail on demurrer. In Scotland it has heen held that, as to process brought there to recover an English debt, the statute of pre- scription in England cannot be pleaded, but that it may be pleaded to infer a pre- sumption of payment ; and the plaintiff will be permitted by positive evidence to overcome this presumption by contrary presumptions, or to show from the circum- stances of the case that payment cannot be presumed. Kame's Principles of Eq^uity, c. 8, p. 369. But this doctrine does not prevail in this country. Wayne, J., in Townsend v. Jameson, 9 How. (U. S.) 407, in a very able and exhaustive opinion, says : " Most of the civilians, however, did not lose sight of the difference between these prescriptions, and if their reasons for doing so had been taken as a guide, instead of some expressions used by them as to what may be presumed as to the extinction or payment of a claim, while the plea in bar is pending, we do not think that any doubt would have been expressed concern- ing the correctness of their other conclu- sion, that statutes of limitations in suits upon contracts only relate to the remedy. But that was not done ; and from some ex- pressions of PoTHiEE and Lord Kames, it was said, 'If the statute of limitations does create, propria vigore, a presumption of the extinction or payment of the debt, which all nations ought to regard, it is not easy to see why the presumption of such pay- ment, thus arising from the lex loci con- tractus, should not be as conclusive to every other place as in the place of the contract. ' . . . But neither PoTHiEB nor Loud Kames meant to be understood that the theory of statutes of limitations purported to afford positive presumptions of payment and ex- tinction of contracts, according to the laws of the place where they are made," but only that the presumption is in favor of the party pleading the statute. Bigelow V. Ames, 18 Minn. 537. In Miller v. Eren- haur, 7 Hun (N. Y.), 330, in an action upon a foreign judgment, it was held that the statute of the State in which the judg- ment was rendered could not be set up to defeat the action in New York, as the stat- ute is local. Hubbell v. Cowdrey, 5 Johns. (N.Y.) 132 ;BisseUi). Hall, Hid. 168;Eug- gles V. Keeler, 3 id. 264; Carpenter v. Wells, 21 Barb. (N. Y.) 593 ; Power i;. Hathaway, 43 id. "214 ; Toulandau i). Lachmeyer, 7 How. Pr. (N. Y.) 145. In Loveland v. Davidson, 3 Penn. L. J. 377, an action was brought in Pennsylvania upon a judg- ment obtained before a justice of the peace in New York, which was barred by the statute of limitations of that State. Held, that it was not a bar to an action thereon in Pennsylvania. Murray v. Fisher, 5 Lans. (N. Y.) 98. 1 McCluny v. Silliman, 3 Pet. (U. S.) 270 ; Townsend v. Jennison, 9 How. (U. S.) 407 ; Thibodeau v. Levasser, 36 Me. 362 ; Le Eoy v. Crowningshield, 2 Mas. (IT. S.) 151 ; Jones v. Hays, 4 McLean (U. S.), 521; McElmoyle v. Cohen, 13 Pet. (U. S.) 312 ; NicoUs v. Rodgers, 2 Paine (U. S.), 437 ; Egberts v. Dibble, 3 McLean (U. S.), 86 ; Miller v. Brenham, 68 N. Y. 83 ; Mayer v. Freedman, 7 Hun (N. Y.), 218. In Loveland v. Davidson, 3 Penn. L. J. Eep. 377, in an action on a judgment ob- tained before a justice in New York, the defendant set up the New York statute of limitations in defence. The court held that the plea was bad, and that the lex fori, and not the lex contractus, governed. And even in those States where by statute the statute of another State may be set up to bar the action, the right to rely on the defence must be affirmatively shown by the answer. Gillett u. HaB, 32 Iowa, 226. This ques- tion was raised in Miller v. Brenham, 7 Hun (N. Y. ), 330. In this case an action was brought against the defendant upon a judg- ment obtained against him in California. It was contended that the action was too late, because by the statute of California an action upon any judgment of the courts of the United States, or of any State and Territory, was required to be commenced within five years from its rendition, where- 8.] PAET OP LEX FOEI. 31 if the statute extinguishes the right itself, it may be set up as a bar to an action thereon wherever brought.^ This rule is forcibly illustrated in another way, -and that is, that where by the laws of the forum a shorter period for the limitation of a claim is fixed than by the law of the situs of the contract, the statute of the forum, will bar the claim if the party setting it up brings himself within it, although the statute of the place of contract has not run. Thus, in Massachusetts, a wit- nessed note is not barred until the lapse of twenty years ; but in A'ew York no distinction is made between a witnessed note and any other ; and in an action in the latter State upon a witnessed note made in Mas- sachusetts and payable there, it was held that the statute of New York run upon it in six years. ^ There is a distinction as suggested bj- Story, J., in his Conflict of Laws, and as suggested in reference to the preceding rule, in cases where the right as well as the remedy of the claimant is barred by the law existing at the place of contract.' This, however, is not perhaps a fre- as nearly eight years had elapsed since the judgment in action was obtained. Under this statute, If the action was not hrought within five years, the judgment was neither discharged nor extinguished, but the party was simply deprived of his remedy. The court, in denying this defence, said: "The statute did not affect the remedy in any otiier respect, and consequently it cannot be allowed to control the proceedings in this State, brought for the collection of the judg- ment. The effect of statutes relating alone to the remedy is necessarily local, and this is a provision of that description. In this State an action upon the judgment could only be barred by showing that the defend- ant had resided here for the length of time required for that purpose by the terms of our statute." Hendricks «. Comstock, 12 Ind. 238 ; Watson v. Brewster, 1 Penn. St. 381 ; Paine ». Drew, 44 N. H. 306 ; Hubbell V. Cowdrey, 5 Johns. (N. Y.) 132; Bissell o. Hall, 11 id. 168; Eug- gles y. Keeler, 3 id. 264 ; Carpenter v. Wells, 21 Barb. (N. Y.) 293 ; Power v. H.ithaway, 43 id. 214; Toulandauu. Lach- nicyer, 37 How. Pr. (N. Y.) 145. In I'utnam v. Dike, 13 Gray (Mass. ), 535, the court held that, although the debt arose forty years before action was brought there- on, it was not barred without proof that the defendant has ever been in the State ; and in Lawrence v. Bassett, 5 Allen (Mass.), 140, it was held that a note is not barred by the statute although overdue for more than six years, although the maker was once a resident of the State, but lias lived out of it ever since the action accrued. Walworth v. Eouth, 14 La. An. 205 ; Garraway v. Hopkins, 1 Head (Tenn.), 583 ; Putnam v. Dike, 13 Gray (Mass. ), 535 ; Bulger V. Roche, 11 Pick. (Mass.) 36; Flowers v. Foreman, 23 How. (U. S.) 132; Carson v. Hunter, 46 Mo. 467 ; Stage Wagon Co. o. Mathieson, 3 Dak. 233. i Gansi). Frank, 36 Barb. (N. Y.) 320 ; Perkins o. Guy, 55 Miss. 153. The rule may be said to lead to these results ; the statute of the country in which suit is brought may be pleaded to bar a recovery on a contract made out of its jurisdiction, but the statute of the State where the con- tract was made cannot be pleaded. But when the statute of the place where the contract was made operates to extinguish the contract or debt itself, and the contract is .sued upon in another State, the statute of the lex lod contractus, and not of the lex fori, controls. McMerty v. Morrisoii, 62 Mo. 140 ; McArthur v. Goddin, 12 Bush (ffy.), 274 ; Jones v. Jones, 18 Ala, 248 ; Cobb V. Thompson, 1 A. K. Mar. (Ky.) 507 ; Harper v. Hampton, 1 H. & J. (Md.) 622 ; Fletcher v. Spaulding, 9 Minn. 64. 2 Nicolls V. Kodgers, 2 Paine (U. S.), 437. ' Carpenter «. Minturn, 6 Lans. (N. Y.) 56 ; Gans v. Frank, 36 Barb. ( N. Y. ) 320 ; Perkins v. Guy, 55 Miss. 155. In Mc- Meity 0, .Morrison, 62 Mo. 140, the court 82 STATUTES OF LIMITATION. [CHAP. I. quent case in regard to personal actions. In all cases touching realty the lex rei sitce prevails.^ Story, J., iu a case previously cited, ^ stated the inclination of his mind to be, that, where the statute of the loci contractus barred all remedy upon the claim, " there is a virtual extinction of the right in that place, which ought to be recognized iu every other tribunal as of equal validity ; " although the decision in the case was adverse to this view. At a later period he wrote his work on The Conflict of Laws, and from what he there says, it is evident that he changed his views in tliis respect. He says : " It may be stated that, as the law of prescrip- tion of a particular country, even in case of a contract made in such coun- try-, forms no part of the contract itself, but merely acts upon it ex post facto, in case of a suit, it cannot properly be deemed a right stipulated ifor or included in the contract."^ Shaw, C. J., in a Massachusetts case,' treated the rule as well settled as stated in the text, but intimated that, if it was an open question, it might be attended with some diffi- culty. In a later case, it was held that an action for breach of promise of marriage brought by a foreigner within six j'ears after coming to this country was not barred, although the promise was made more than twenty j-ears previousl}- in her native countrj-.' In some of the States- provision is made by statute that, in certain cases, and subject to cer- tain conditions, the statute of another State, where the defendant has resided for the requisite period to bar the claim, may be interposed as . a bar in the State where action is brought. This is the case in Massa- chusetts, Nebraska, Nevada, Kansas, Oregon, Iowa, Texas, Florida, and Ohio." And in Wisconsin it is held that when both parties reside say: "The statute of limitations of the * Bulger d. Roche, 11 Mass. 36. country in which suit is brought may be ' Goetz v. Voelinger, 99 Mass. 504. pleaded to bar a recovery on a contract But now the rule is otherwise by statute made out of its political jurisdiction, but of 1880, c. 98, and Stat. 1882, p. 1115. the statute of the place where the contract In Atwater v. Townsend, 4 Conn. 47, it was made cannot be pleaded. But when was held that neither the statute of limi- the statute of limitations where the con- tations nor a discharge under the insol- tract was made operates to destroy or ex- vent laws of the lex loci contractus can tinguish the right or debt itself, and the be set up to bar a remedy. See Smith contract is sued in another State, the lex v. Spinola, 2 Johns. (N. Y.) 196; Sicard loci contractus, and not the lex fori, governs, v. Whale, 11 id. 194; Whitmore v. Adams, Fears v. Sykes, 35 Miss. 633. When a 2 Cow. (N. Y.) 626; Shervell v. Hopkins, rightof action has expired by limitation of 1 id. 103; Beckwith v. Angell, 6 Conn, the statute of another State by which 322; Woodbridge o. Wright, 3 id. 523; alone the right is created, no action can Smith v. Healy, 4 id. 49. The last two be maintained thereon in another State, cases relate to a discharge under insolvent Halsey v, McLean, 12 Allen (Mass.), laws. 439. 8 Nebraska Gen. Stat. c. 55, tit. 11; 1 Pitt V. Lord Dacre, L. R. 3 Ch. D. Nevada Comp. Laws, c. 50, §33; Indiana 295; Stoi-y on Conflict of Laws, 581. Rev. Stat. 1872; Kansas Gen. Laws, c. '^ Le Roy p. Crowningahield, 2 Mas, 26, tit. 2, § 28; Oregon Gen. Laws, c. 1, (TJ. S. C. C.) 151. tit. 11, § 26; Iowa Code, tit. 19, c. 99, 1 Story on Conflict of Laws, 583. § 1665; Massachusetts Stat, 1882, p. 1115; §8.] PART OP LEX FOEI. 33 therein until a debt is barred or a title made, the right is extinguished so that it would be a defence in another State. ^ Under these saving statutes, where a right is completely barred under the statutes of another State or country, it forms a valid defence in the State in the statute of which such saving clause exists.^ But, in order to avaU himself of that defence, it must be affirmatively stated in the plea or answer, and must be fully established by the defendant by proof, showing that the statute of the State relied on has fully run upon the claim, and that the conditions required to make such statute a bar existed. Independent of any such statutorj' provision, the rule is well settled, that when the citizen of one State seeks a remedy upon a, contract or claim in the forum of another State, he thereby impliedly submits to all the la-ws of such State relating to the remedj', and has. no cause of complaint if those laws deprive him of advantages that he might have had under the laws of his own State.' It is a fule of law. Texas, Harr. Dig., Laws of Texas, 2389; Florida, Thomp. Dig. c. 2 ; Ohio, Statute of Ohio, 1841, § 4. See Appendix. 1 Brown v. Parker, 28 Wis. 21; Knox V. Cleaveland, 13 id. 245. 2 State V. Ladd, 1 Biss. (TJ. S. C. C.) 69 ; Harris v. Harris, 38 Ind. 402 ; Van Dorn V. Bodley, id. 402; Hoggett v. Emer- son, 8 Kan. 262. In Nebraska, when a cause of action is fully barred by the law of another State where the defendant had previously resided, it also is a. bar there. In Nevada, where a cause of action arose in another State or country, and by the law thereof an action cannot be maintained upon it there, no action can be maintained thereon in Nevada. A similar provision exists in the statute of Kansas. In Ohio and Oregon, when the cause of action arose out of the State, and between non-resi- dents, and by the laws of the State or country where the cause of action arose an action cannot be maintained thereon, no action can be maintained thereon in those States. In Iowa, when a claim is barred by the laws of any State or country where the defendant has previously resided, it is also barred there. In Texas, the pro- vision is similar to that in Oregon. In Florida, an inhabitant or resident of that State may set up the statute of the State where the contract was made, in bar. S Blackburn v. Merton, 18 Ark. 384. The statute of a State acting upon the title to personal property may be set up in a foreign jurisdiction, as it relates to the VOL. I. — 3 right rather than to the remedy. Fears. ■». Sykes, 35 Miss. 633; but except where, the statute extinguishes the right of action, . in the absence of any such statutory pro- vision in the State where action is brought, only the statute of such State can bar the- remedy. Urton v. Hunter, 2 W. Va. 83;. Decouch V. Lavetier, 3 Johns. Ch. (N. Y.). 190 ; Gassaway v. Hopkins, 1 Head (Tenn.), 383 ; Crawford v. Childress, 1 Ala. 482;, King V. Lane, 7 Mo. 241; Egberts v. Dib- ble, 3 McLean (U. S:), 86 ; Cartier v. Paige, 8 Vt. 150 ; Jones v. Hayes, 4 Mc- Lean (U. S.), 521 ; Estes v. Kyle, Meigs; (Tenn.), 34; State v. Swope, 7 Ind. 91,- Pegram v. Williams, 4 Eich. (S. C.) 219;. Thibodeau v. LevasseUr, 36 Me. 362; Bis- sell V. Hall, 11 Johns. (N. Y.) 168; Wood- bridge V. Austin, 2 Tyler (Vt.), 364;, Wilkinson v. HoUoway, 7 Leigh (Va.), 277 ; Thompson v. Tioga, &c. E. E. Co., 36 Barb. (N. Y.) 79; Paine v. Drew, 44 N. H. 306; Crocker v. Avery, 3 R. I. 178; Cobb «. Thompson, 1 A. K. Mar. (Ky.) 507; Flower v. Foreman, 23 How. (U. S.) 132; Harper v. Hammond, 1 H. & J. (Md.) 622; Richards v. Bickley, 13 S. & E. (Peun.) 395; Buggies v. Keeler, 3 Johns. (N. Y.) 263; Bruce v. Luck, 4 Greene (Iowa), 143; Hawkins v. Barney, 5 Pet. (IT. S.) 457; Jones V. Hook, 2 Eand. (Va.) 403 ; Pear- sail V. Dwight, 2 Mass. 84; Ward v. Hal- lam, 1 Yeates (Penn.), 329; Toulandau «. Lachmeyer, 37 How. Pr. (N. Y.) 145 ; Levy V. Boas, 2 Bailey (S. C), 217; Hinton v. Townes, 1 HUl (S. C), 439 ; 34 STATUTES OF LIMITATION. [CHAP. I. too universally conceded to need supporting authorities, that contracts are to be construed according to the lex loci contractus, but that they are to be enforced according to the lex fori. This distinction is by no means peculiar to the common law, but is found in other municipal codes which adopt the civil law as their basis. ^ " Prsescriptia et exe- cntio," says Huberus, " non pertinent ad valorem contractus sed ad tempus et modum actionis instituendee, ad eo que recepta est optima ratione, ut in ordinandis judiciis, loci cousuetudo ubi agitur, etsi de negotio alibi celebrato spectetur." ^ We have already seen that so much of the law of a foreign country as affects the remedy only, all that relates ad litis ordinutionem, is taken from the lex fori of that coun- try where the action is brought. The time of limitation of actions therefore is governed b^' the law of the country where the action is brought, and not by the lex loci contractus. But where the law of prescription or limitation of a particular countrj^ not onlj extinguishes the right of action, but the claim or title, or cause of action itself, ipso facto, and declares it a nullity after the lapse of the prescribed period, such law of prescription or limitation may be set up in any other coun- try to which the parties may remove as an absolute bar by way of extinguishment, provided the parties have been resident within the foreign jurisdiction during the whole period of limitation, so that the law has actually, operated upon the case as an extinguishment of the claim, and not merely as a limitation of the remedy. By the French law, all rights of action relative to letters of exchange and bills to order, subscribed by merchants, tradesmen, or bankers, or for matters of commerce, expire in five years, reckoning from the day of protest or from the last suing out of any judicial process, if there has been no judgment, or if the debt has not been acknowledged by any separate act. But the alleged debtors are held, if required, to afiirm on oath that thej' are no longer indebted, and their widows, heirs,^ &c., that they bona fide believe there is no longer anything due. The French law of limitation, therefore, does not extinguish or annul the contract, but operates upon the remedy ovA.y. If, therefore, a party Graves v. Graves, 2 Bibb (Ey.), 207. In 9 Minn. 64. And in those States where Louisiana, the statute of another State may the statute lets in the statute of another be set up to defeat an action upon two State to bar the remedy, it is necessary conditions : 1st, when the debt accrued that the statute bar of such State should between parties, both of whom resided be complete. Hays v. Cage, 2 Tex. 605 ; out of the State, and where the debt was Smith v. Crosby, id. 414. And time to be paid out of the State; and, 2d, where that has partly run in one State cannot be the defendant removes to the State after tacked to the time that has run in the the statute bar has become complete. State where the action is brought to com- Walworth v. Kouth, 14 La. An. 205. Sus- plete the bar. Perry v. Lewis, 6 Fla. 655. taining the doctrine of the text, see Jones i Traite de Assurance, c. 4. V. Jones, 18 Ala. 248 ; Medbury v. Hop- 2 Prtelee. de Conflicti Legum, vol. IL kins, 3 Conn. 472 ; Hendricks v. Com- Lib. 1. stock, 12 Ind. 238; Fletcher v. Spaulding, § 9.] WHEN NOT PART OF LEX FOKI. 35 who has contracted in France removes to this country, and is sued here upon the contract, the action will be governed by the law of the State in which the action is brought, and not by the French law of limitation of actions.^ Sec. 9. Distinction -wherfe a Statute gives and limits the Remedy. — There is an important distinction to be observed in the application of this rule. When the statute of a particular State or country gives a remedy which did not exist at common law, and at the same time limits the period within which action therefor shall be brought, the period of limitation thus named controls in whatever jurisdiction action ma}' be brought.^ A contrary rule would result in upholding a right of action where none existed by virtue of the common law, simply because the statutes of a foreign jurisdiction gave a remedj', although in fact, under such statute, the remedy was lost. Thus, in the case first cited in the preceding note, an action was brought in the United States Court for the Eastern District of Michigan by an administrator for the death of his testator by the explosion of a steamboat boiler. The explosion took place in the Province of Ontario ; and, under a statute existing there, a remedy was given to an administrator or executor of a person whose death was caused by the negligence of another, if there would have been a liability therefor at the common law if death had not ensued. But this right of action e:vsted only subject to the provision that "every such action shall be commenced within twelve months after the death of such deceased person." The action was not brought within twelve months after the testator's decease ; and the court held that while an action under such a statute could be maintained in another State or country,^ yet it could only be maintained subject to all the limitations and conditions imposed by the statute, and that the plaintiff must show that he has complied with all such conditions and limitations in every particular, or his action will fail. In creating the right, the legislature has the power to impose upon it any restrictions it sees fit, and the conditions so imposed qualify the right, and are an integral part thereof; they are conditions precedent, so to speak, that must be fully complied with, or the right does not exist. Such rights being in derogation of the common law, all restrictive language is construed against it.* It seems, also, that where such a right is given by statute, and a limitation is therein imposed as to the time within which the action shall be brought, and subsequent to the time 1 Huter V. Steiner, 2 Sc. 326; British v. Steiner, 2 Bing. N. C. 202 ; Halsey v. Linen Co. v. Drummond, TO B. & C. 903; McLean, 12 Allen (Mass.), 439. Le Eoux V. Brown, 12 C. B. 801 ; Buck- ' See to that effect Eastwood v. Ken- maboye v. Mottichund, 8 Moo. P. 0. 4. nedy, 44 Md. 563 ; Huher'i). Steiner, 2 Bing. 2 Boyd V. Clark, U. S. C. C. (Mich.) F. C. 202 ; Baker v. Stonebroker, 36 Mo. October Term, 1881, reported 24 Alb. L. J. 349 ; Dennicku. Eailroad Co., 103 U. S. 11. 508 ; Eastwood u. Kennedy, 44 Md. 563 ; * Pittsburgh, C, & St. Louis E. E. Co. Baker v. Stonebroker, 36 Mo. 349 ; Huber v. Hine, 25 Ohio St, 629. 36 STATUTES OF LIMITATION. [CHAP. I. when a right accrued thereunder the right is enlarged or restricted, and the limitation clause is repealed, that the right can only be enforced under the statute as it stood when it accrued, and subject to aU its conditions and limitations.^ Sec. 10. Rule -when Title to Personal Property is acquired by Possession under the Statute of a State. — When personal property is held adversely in one State for a sufficient length of time to acquire a title thereto, under a statute existing relative thereto, there can be no reason why the title so acquu-ed should not be recognized in every State, although the statute of such other State requires a longer pos- session, or, in fact, although no title by possession can ever be acquired to personal property in such other State ; and such seems to be the rule.- In such a case, lapse of time not onlj- bars the remedy, but also extinguishes the right to the property in question ; and in such cases, as we have already seen, the couits recognize the statute of the foreign jurisdiction as controlling the rights of the parties.' In a case in the United States court* this question was ably considered, and the doctrine stated in the text is vindicated upon the ground that there is an essential distinction between a statute giving title by possession and one simply limiting the remedy. In the one case the right is extin- guished, while in the other the right still exists, but the remedy therefor is taken away. In a case previously cited ^ in the same court this ques- tion was directly raised in a ease where the possession of a slave was sought to be obtained in an action of detinue, and it was held that, as the laws of Virginia provided that five years' bona fide possession of a slave shall constitute a good title thereto, and as the vendee's vendor had acquired such title under that statute, he might set up such title in the courts' of Tennessee as a defence to an action there brought to recover such slave.* Sec. 11. Constitutionality of Limitation Acts. — Before proceeding to discuss the numerous questions arising under these statutes, it is advisable to ascertain how far, under the clause of the Constitution pro- viding that no State shall pass any law impairing the obligation of con- tracts, the legislature of the several States may go in imposing or varying limitations afiecting contracts then existing. 1 Pittsburgh, C, & St. Louis E. E. Co. » Perldns v. Guy, ante; Gans v. Frank, u. Hine, 25 Ohio St. 629. arde; Lincoln v. BatteUe, 6 Wend. (X. Y.) 2 Shelby v. Guy, 11 Wheat. (U. S.) 361 ; 475 ; Beckford v. Wade, 17 Ves. 87 ; De Bracon v. Bracon, 5 Ala. 508 ; Goodman La Vega v. Vianna, 1 B. & Ad. 284 ; Don V. Monks, 8 Port. (Ala.) 84, 130 ; Fears v. Lipmann, 1 01. & F. 1 ; British, &c. Co. V. Sykes, 35 iliss. 633 ; Blackburn v. v. Drummond, 10 B. & C. 903. Morton, 18 Ark. 384 ; CargiU v. Harrison, ♦ Townsend v. Jameson, 9 How. U. S.) 9 B. Mon. (Ky.) 518. But see Jones v. 407 ; Brent v. Chapman, 5 Cranch (U. S.), Jones, 18 Ala. 248 ; Xewby v. Blackley, 358. 3 H. & M. (Va.) 57 ; Townsand ■». Jame- 5 Shelby ■». Guy, amte. son, 9 How. (!'. S.) 407. See also Story 6 ggg also to the same effect Brent v. on Conflict of Laws, § 582, where that Chapman, ante: Brown v. Brown, ante; emiuent author suggests this exception. Newby v. Blackley, ante. §11-J CONSTITUTIONALITY OF. 87 It may be said that the obligation of a contract is the law that binds the party to perform his undertaking, and consists in the power and efficacy of the law which applies to and enforces performance, or the payment of an equivalent for non-performance. The obligation does not inhere and subsist in the contract itself 7>rqpr-io vigore, but in the law applicable to- the contract ; '^ therefore, where rights are acquired, and have vested under a statute, thej'^ cannot be divested by a repeal or modification thereof.^ But statutes relating merely to the remedy upon 1 Ogden V. Saunders, 12 Wheat. (U. S.) 318 ; Lapsley v. Brashear, 4 Litt. (Ky.) 47 ; Blair u. Williams, id. 34 ; Solin v. Watterson, 17 Wall. (U. S.) 696. In Harris v. Grey, 49 Ga. 585 ; Davidson v. Lawrence, id. 335 ; Kimbro ■». Bank of Fulton, id. 419 ; George v. Gardner, id. 441, It was held that a limitation act passed March 16, 1869, barring after Jan. 1, 1870, actions the right whereof accrued prior to June 1, 1869, is not un- constitutional. Bentwick v. Franklin, 38 Tex. 358. In De Moss v. Newton, 31 Ind. 219, the court say : " Where a right springs, not from a contract, but from legislative enactment, the action to en- force a claim under such eniictment may be limited by law ; and the legislature is the exclusive judge of the reasonableness of the time allowed within which the action may be brought, and neither the fact that the period is short or long is one which will enable the court to declare the act void for unreasonableness. Adamson u. Davis, 47 Mo. 268. In Korn v. Brown, 64 Penn. St. 55, the section of-the Pennsylvania statute barring a reooveiy on ground-rents, unless brought within twenty-one years, was held constitutional although retro- spective. A statute that provides that the statute shall not run against the plaintiff if he resides in the State, but shall if he resides out of it, is held not to violate the provisions of the Federal Constitution, that "'the citizens of each State shall be entitled to all the privileges and immu- nities of citizens in the several States." Chemung County Bank v. Lowery, 93 U. S. 72. And the same has been held as to statutes barring judgments obtained in other States. Meek v. Meek, 45 Iowa, 294. That the statute may provide differ- ent periods of limitations as to non-resi- dents, see Hawse v. Burgmii'e, 4 Col. 313. In Georgia, the question as to whether a statute of limitations applying to debts ex- isting at the time of its passage violated the provisions of the constitution of that State inhibiting laws impairing the obligations of a contract was raised in several cases, and the court held that it did not. That these statutes simply relate to tlie rem- edy, and do not affect the obligations of the contract, see Davidson v. Lawrence, 49 Ga. 335 ; Harris v. Grey, id. 685 ; Kim- bro V. Fulton Bank, id. 419 ; George V. Gardner, id. 441. This question was also raised in the United States Su- preme Court, and was similarly decided, Sohn v. Watterson, 17 Wall. (U. S.) 596, the court observing that ordinarily the true rule for applying these statutes to rights of action already accrued is tQ allow the party the statutory time for suing, computing it from the passage of the act, and to consider the limitation as com- mencing at the time when the cause of action is first subjected to the operation of the statute. 2 Southard v. Central E. E. Co., 26 N. J. L. 13; Benson v. The Mayor, 10 Barb. (N. Y.) 223; Houston ii. Boyle, 10 Ired. (N. C.) 496; Oriental Bank v. Freize, 18 Me. 109; Coffin v. Eich, 45 id. 507; Davis V. O'Ferrall, 4 Greene (Iowa), 168. In GirdneriJ. Stephens, 1 Heisk. (Tenn.) 280, sec. 4 of the schedule of the amended con- stitution of 1865, and sec. 4 of the sched- ule of the new constitution of 1870, and the act of May 30, 1865, c. 10, § 1, so far as their terms and effect authorized the bringing of an action to recover on claims of any kind which by existing laws were already barred, was held unconstitutional, because interfering with vested rights. See Adamson v. Davis, 47 Mo. 268, also 272 and 273. To the same effect, Thomp- son V. Eead, 41 Iowa, 48; Pitman v. Bump, 5 Oregon, 17. S8 STATUTES OP LIMITATION. [chap. I. a contract are not vested rights, and consequently do not impair the obligation of contracts,' consequentlj'^ the remedy of a party upon an existing contract may be changed, altliough the law effecting the change affects actions then pending.^ Statutes of limitation relate only to the remedy,' and may be altered or repealed before the statutory bar has become complete, but not after, so as to defeat the effect of the statute in extinguishing the rights of action;^ but it cannot limit existing I Oriental Bank v, Freize, q,nte ; Read V. Frankfort Bank, 23 Me. 318; Evans v. Montgomery, 4 W. & S. (Penn.) 218; Hope V. Johnson, 2 Yerg. (Tenn. ) 125; Curry v. Sanders, 35 Ala. 280; Oliver Lee & Co.. 'a Bank, 21 N. Y. 9; Cutts v. Har- dee, 38 Ga. 350 ; Hope v. Johnson, 2 Yerg. (Tenn.) 123; Cook v. Grey, 2 Houst. (Del.) i5i; Ralston ii. Lothair, 18 Ind. 303. "If," says the court in Terry v. Anderson, 95 U. S. 628, "the legislature may prescribe a limitation' where none ex- isted before, it may change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced." The legislature may bar actions upon judgments of other States. Meek v. Meek, 45 Iowa, 294. Upon the general proposition and hold- ing that the legislature has power to change the period of limitations as to all claims not already barred, allowing a rea- sonable time for bringing actions thereon, is valid, see Hyman v. Bayne, 83 111. 256; Dyer v. Gill, 32 Ark. 410; Pearsall V. Kenan, 79 N. C. 472; People v. Wayne Co. Judge, 37 Mich. 287 ; Sampson v. Sampson, 63 Me. 328 ; Krone v. Krone, 37 id. 308; Johnson v. Railroad Co., 54 N. Y. 416. And even though no provision therefor is made in the new law, if it does not expressly take away such right, it will he constnied as giving a, reasonable time after its passage before existing claims are ban-ed. Dale v. Frisbie, 59 Ind. 520; Button V. Guy, 12 S. C. 42. That legisla- ture may give a statute a retroactive effect, •see Ludwig v. Stewart, 32 Mich. 27 ; Hor- bach V. Miller, 4 Neb. 31. Whatever may be the rule as to contracts, the legis- lature has unrestricted power to change the period of limitations as to actions ex delicto. Guilotell v. Mayors, ,55 -How. Pr. (S. Y.) 114. And the same is also true as to all rights created by statute. De Moss V. Newton, 31 Ind. 219. ^ Read v. Frankfort Bank, ante; Woods ■I). Buie, 6 Miss. '285 ; Evans v. Mont- gomery, 4 W. & S. (Penn.) 218; Ralston V. Lothair, amte; Tucker v. Harris, 13 Ga. 1. But it cannot, after the rights of a party have been adjudicated, interfere with the process to enforce that right so as to ma- terially lessen the efficiency of the right of the judgment creditor. Oliver v. Mc- Clure, 28 Ark. 555. The remedy provided for the enforcement of contracts may be changed at the will of the legislature, pro- vided the obligation of the contract is not thereby weakened, lessened, or impaired, Holland v. Dickerson, 41 Iowa, 367; and this is so, even though the act is retro- spective. Lanei). Nelson, 79 Penn. St. 407; Baldwin v. Newark, 38 N. J. L. 334; Til- ton V. Swift, 40 Iowa, 78. Special statutes affecting or applying only to a single city or county, unless such legislation is ex- pressly prohibited in the constitution, are valid. Nash v. Fletcher, 44 Miss. 609. The period of limitation may be shortened. Guilotell V. Mayor of New York, 55 How. Pr. (N. Y.) 114. 3 Cox V. Berry, 13 Ga. 306 ; Edwards V. McCaddon, 20 Iowa, 520 ; Mechanics', &c. Bank (appeal from Probate), 31 Conn. 63 ; Wintermire v. Westover, 14 N. Y. 16; Pearce v. Patten, 7 B. Mon. (Ky.) 162. * Ludwig V. Stewart, 32 Mich. 27; Thompson v. Read, 41 Iowa, 48 ; Pitman V. Bump, 5 Oreg. 17 ; Memphis v. United States, 97 U. S. 293; Pearsall v. Kenan, 79 N. C. 472; Dyer«. Gill, 32 Ark. 410; Terry V. Anderson, 95 U. S. 628. Relating only to the remedy, the statute is not a part of the contract until the statutory bar has be- §11-] CONSTITUTIONALITY OF. 39 claims without allowing a reasonable time after its passage for parties to bring an action.* oome complete ; consequently, before that time the period of limitation may be extended or lessened by the legislature without becoming obnoxious to any con- stitutional objection. Edwards v. McCad- don, 20 Iowa, 420 ; Beal v. Nason, 14 Me. 344 ; Newkirk v. Chapron, 17 111. 344 ; Wright V. Oakley, 5 Met. (Mass.) 400; Battles V. Fobes, 18 Pick. (Mass.) 532. The repeal or amendment of a statute of limitations does not apply to a claim al- ready barred by the statute, because by the lapse of the statutory period the rights of the pai'ties have become vested, and the legislature cannot detract from or enlarge them. Battles 11. Fobes, 18 Pick. (Mass.) 532 J Seymour v. Deming, 9 Oush. (Mass.) 529; Willardu. Clarke, 7Met. (Mass.) 435; Darling v. "Wells, 1 Cush. (Mass.) 508 ; Brigham v. Bigelow, 12 Met. (Mass.) 268 ; Garfield v. Bemis, 2 Allen (Mass.), 445. Thus, the legislature cannot give a remedy on a claim already barred by the statute, Loring v. Boston, 12 Gray (Mass. ), 409 ; Kinsman v. Cambridge, 121 Mass. 558 ; nor deprive a party of the benefits of such bar, Wright v. Oakley, ante; Battles ■». Fobes, ante. 1 Horbach v. Miller, 4 Neb. S3. ; Hal- combe u. Tracy, 2 Minn. 241 ; Lockhart V. Yeiser, 2 Bush (Ky.), 231 ; W. S. R. E. Co. V. Stockett, 21 Miss, 395 ; Beal v. Nason, 14 Me. 344; Call v. Hagger, 8 Mass. 430. It was held at an early day in the history of our statutes that they do not come nnder the bar of the Constitution of the United States or of the State consti- tutions, except where they are retro.'spec- tive, in the legal sense of the term ; that is, imless they impaired vested rights. Gospel Society v. Wheeler, 2 Gall. (U. S. C. C.) 105; Ogden v. Saunders, 12 Wheat. (U. S. ) 349; Wintei-mire v. Westover, 14 N. Y. 16 ; Bush v. Van Kleck, 7 Johns. (N. Y.) 447; Caldert). Bull, 3Dall. (Penn.) 386 ; Sturges o. Crowninshield, 4 Wheat. (U. S.) 122. A statute that barred apa,st right of action, without any provision for a period within which an action might be brought, would not only be unreasonable and obnoxious to the objection that it im- paired the rights of private property, but subject to this exception such laws have been held valid, and applying to the rem- edy merely their retrospective operation is no objection to them. Hope v. Johnson, 2 Yerg. (Tenn.) 123; United States v. Sam- peryac, 1 Hempst. (U. S. C. C.) 118; Cutts V. Harder, 38 Ga. 350 ; Kathbone v. Brad- ford, 1 Ala. 312; Steamboat Co. v. Barclay, 30 id. 120 ; Holcombe v. Tracy, 2 Minn. 241; Lockhart D. Yeiser, 2 Bush (Ky.), 231; Cook «. Wood, 1 McCord (S. C), 139 ; Beltzhooveri). Yewell, 1 G. & J. (Md.) 212; Cox V. Berry, 13 Ga. 306 ; Billings v. Hull, 7 Cal. 1 ; Blackford v. Peltier, 1 Blackf. (Ind.) 36 ; Griffin v. MoKenzie, 7 Ga. 163 ; Ward i>. Kilts, 12 Wend. (N. Y.) 137; Eckstein v. Shoemaker, 3 Whart. (Penn. ) 15; Frey v. Kirk, 4 G. & J. (Md.) 509; Haw- kins u. Barney, 5 Pet. (U. S.) 485; Charles- town Bridge v. Warren Bridge, 11 Pet. (U. S.) 420. The rules fairly deduoible from the re- ported cases are, that it is competent for the legislature to make a statute retro- spective where it does not impair the obli- gation of a contract or a vested right. Sat- terlee v. Matthewson,16 S. & R. (Penn.)169; Weiser v. Hade, 52 Penn. St. 472. Stat- utes relating merely to the remedy are not a part of contracts made while it is in force ; therefore the legislature may alter, modify, or repeal the same at any time before rights have become complete under them, and as statutes of limitation merely relate to the remedy, it follows that the legislature may alter the same at any time before a claim has become barred under them. Miller v. Com., 5 W. &S. (Penn.) 488. In Bigelow B. Bemis, 2 Allen Mass.), 496, BiGBLOW, J., says : " It is well set- tled that it is competent for the legisla- ture to change statutes prescribing a lim- itation to actions, and that the one in force at the time of suit brought is appli- cable to the cause of action. The only restriction on the exercise of this power is that the legislature cannot remove a bar or limitation which has already become com- plete, and that no new limitation shall be made to take effect on existing claims without allowing a reasonable time for par- ties to bring actions before their claims 40 STATUTES OF LIMITATION. [OHA.P. I. It has been held in a case decided by a majority of the Supreme are absolutely barred by a new enactment. See also to same effect Dillon v. Dough- erty, 2 Grant's Cas. (Penn.) 99; Morford V. Cook, 24 Penn. St. 92 ; Call v. Hagger, 8 Mass. 423 ; Smith v. Morrison, 22 Pick. (Mass.) 430 ; and the cases cited ante, as well as those hereafter cited in this note. In Prentice v. Dehon, 10 Allen (Mass.), 353, and Ball v. Wyeth, 99 Mass. 338, it was a query with the ooiurt whether the legislature possessed the power to give a remedy upon a claim already barred ; but as this question has invariably been de- cided in the negative, it can hardly be re- garded as an open one, although we confess that, upon the theory adopted by the courts, we see no reason why the legislature might not exercise this power. Under these stat- utes generally the right is not extin- guished, but only the right of action thereon is taken away. The claim {may be sued in another State and a judgment obtained, and an action upon that judg- ment may be maintained in the courts of the State by the statute of which the claim on which the judgment was ob- tained was barred. Now, if the person against whom the claim exists acquires such a vested right under the statute, that after the statute has run upon the claim the legislature cannot give a remedy thereon, it must be upon the ground that the claim has been extinguished by the statute, in which event it ceases to be an enforceable obligation anywhere, whereas the courts hold, as we have seen, that the right is not extinguished, but only the remedy thereon taken away. In Camp- bell V. Holt, 115 U. S. 620, this doctrine has been held, and a strong intimation that such doctrine would be held in New York, should the question ever be raised there, has been given in a recent case. In New Hampshire, in Woart v. Winnick, 3 N. H 473, it was held that an act re- pealing an act of limitation was, as to all actions pending at the time of the repeal, retrospective and contrary to the State constitution ; and this, of course, would be the rule where the constitution prohibits retrospective laws. The law seems to be well settled that the legislature may change the statute even as to existing claims, if a reasonable time is allowed for the bringing of actions thereon. Nash v. Fletcher, 44 Miss. 609 ; Patterson v. Gaines, 6 How. (U. S.) 550; Elliott v. Lochrane, 1 Kan. 126 ; Pierce v. Tobey, 5 Met. (Mass.) 158 ; State u. Clark, 7 Ind. 468; Beesley v. Spencer, 25 111. 216; Root v. Bradley, 1 Kan. 437 ; Wright v. Keithler, 7 Iowa, 92; Cox V. Brown, 6 Jones (N. C.) L. lOOj Pierce v. Patton, 7 B. Mon. (Ky.) 172; Callaway v. MoUey, 31 Mo. 393 ; Sleeth V. Murphy, 1 Morris (Iowa), 321 ; Howel u. Howell, 15 Wis. 55 ; Gilman v. Outts, 23 N. H. 376; Beal v. Nason, 14 Me. 344; Martin v. Martin, 3 Ala. 560 ; Willard v. Harvey, 24 N. H. 344; Webster i;. Cooper, 14 How. (U. S.) 488 ; Railroad Co. v. Stockett, 13 S. & M. (Miss.) 375 ; Fiske V. Briggs, 6 R. I. 567 ; Bank v. Dutton, 9 How. (U. S.) 522 ; Kilbum v. Lackman, 8 Iowa, 380 ; Winston v. McCormick, 1 Ind. 56; Pritchard v. Spencer, 2 Ind. 486; Briscoe v. Ankelette, 28 Miss. 361; Slater V. Com., 3 Ohio St. 80; Holcombe v. Tracy, 2 Minn. 241 ; De Cordova v. Galveston, 4 Tex. 470. Unless the statute expressly so provides, a change in the law does not operate upon claims then existing, but only upon those subsequently arising. Gib- bons V. Goodrich, 3 111. App. 590 ; Van Hook V. Whitlock, 3 Paige Ch. (N. Y.) 305 ; Deal v. Patterson, 14 La. An. 728 ; Culvert V. Lanner, 10 Ark. 147 ; Didier v. Davidson, 2 Barb. Ch. (N. Y.) 477 ; Asl^- brooke v. Quarle's Heirs, 15 B. Mou. (Ky.) 20 ; Calkins v. Calkins, 3 Barb. (N. Y.) 305 ; Lucas v. Tunstall, 5 Ark. 448 ; Ridgeley v. Steamboat Reindeer, 27 Mo. 442 ; People v. Supervisors, 10 Wend. (N. Y.) 306 ; Clemens v. Wilkinson, 10 Miss. 97 ; Gordon v. Mounts, 2 Greene (Iowa), 343; McKenney u. McKenney, 8 Ohio St. 423 ; Williamson v. Field, 2 Sandf. (N. Y.) Ch. 533 ; Thompson ti. Alexander, 11 111. 54 ; Dickerson v. Mor- rison, 5 Ark. 264 ; Scarborough v. Dugan, 10 Cal. 305 ; Brown v. Wilcox, 10 Miss. 97 ; Paddleford v. Dunn, 14 Mo. 517 ; Hinch V. Weatherford, 2 Greene (Iowa), 244 ; Boyd v. Barringer, 23 Miss. 269. That a statute may extend the time of limitation upon existing claims has been frequently held, but it cannot, and does §11] C0i«STITtJT10NALITY OF. 41 Court of the United States '■ that in actions upon debt, contract, or any class of actions in which a party does not become invested with the title to property by the statute of limitations, that the legislature may by a repeal of the statute of limitations, even after, the right of action thereon is barred, restore to the plaintiff his remedy thereon, and divest the other party of the statutory bar. The doctrine of this case is un- doubtedly technically correct, and was suggested in the first edition of this work, in Note 1, page 28. It is, however, opposed to the great weight of authority in this country, and is opposed to the policy of these statutes. There can be no question that the legislatures of the several States by the passage of the statute of limitations intended a permanent divestment of a right of action in all matters to which the statute relates, when it had run against them, and they had thereby become barred. And while it may be, as I have already suggested, that the reasoning of the court is correct, yet the wisdom of the doctrine announced is questionable.'' There is another rule that must be borne in mind in reference to all statutes, which is, that they are to be so construed as to have a- prospec- tive efitect merely, and will not be permitted to affect past transactions, unless such intention is clearly and unequivocally expressed ; ' and not, revive those already 'barTed, Bradford V. Strine, 13 Fla. 393 ; Rogers v. Handy, 24 Vt. 620 ; Winston v. McCormick, 1 Smith (Ind.), 8 ; Wright w. Oakley, 5 Met. (Mass.) 400 ; Morford v. Cook, ante; Gar- field V. Bemis, 2 Allen (Mass.), 445 ; Bal- dvo V. Tomlie, 1 Oreg. 176 ; Jay v. Thomp- son, 1 Doug. (Mich.) 373 ; Hill v. Knickie, 11 Wis. 442; Spreoker v. Wakely, id. 432; Hawkins v. Campbell, 5 Ark. 512 ; Cauch V. McKee, id. 484 ; Wires v. Farr, 25 Vt. 41 ; Walker v. Bank, 6 Ark. 561 ; Davis V. Minor, 1 How. (Miss.) 183; Eabb v. Harland, 7 Penn. St. 292 ; Stipp v. Brown, 2 Ind. 647; Clark v. Bank, 10 Ark. 512 ; Brown v. Wilcox, 14 S. & M. (Miss.) 127; McKinuey v. Springer, 8 Blackf. (Ind.) 506 ; Forsyth v. Ripley, 2 Greene (Iowa), 181 ; Knox v. Cleaveland, 13 Wis. 245 ; Dillon v. Dougherty, 2 Grant's Cas. (Penn.) 99 ; Yancey v. Yan- cey, 5 Heisk. (Tenu. ) 353 ; but acts only on existing rights. Cox v. Davis, 17 Ala. 714 ; Chandler v. Chandler, 21 Ark. 95 ; Henry v. Thorpe, 14 Ala. 103 ; Coady v. Reins, 1 Mon. T. 424. 1 Campbell v. Holt, 155 U. S. 620. 2 Martin v. Martin, 35 Ala. 560 ; Mc- Cracken Co. v. Mercantile Trust Co., 84 Ky. 344; Kinsman v. Cambridge, 121 528 ; Atkinson v. Dunlap, 50 Me. 511 ; Dyer v. Gill, 32 Ark. 410 ; Wil- loughby V. George, 5 Col. 80 ; Mere, &c. II. Sehner, 37 Md. 180 ; Ludwig v. Stewart, 32 Mich. 27 ; Power v. Telford, 60 Miss. 195 ; Pitman v. Bump, 5 Oreg. 15 ; Bock- port V. Walden, 54 N. H. 167. See notes pages 24 to 35. ' Com. u. Sudbury, 106 Mass. 268 ; Whitman v. Hapgood, 10 Mass. 437; Gar- field V. Bemis, 2 Allen (Mass.), 445; Jar- vis 0. Jarvis,, 3 Edw. Ch. (ST. Y.) 462; People V. Supervisors of Columbia, 43 N. Y. 130 ; People v. Supervisors of Ulster, 63 Barb. (S. Y.) 83; Jifew York, &o.>R. R. Co. V. Van Horn, 57 N. Y. 473; Hoch's Appeal, 72 Penn. St. 53; Oliphant V. Smith, 6 Watts (Penn.), 449; Phila- delphia V. Passenger' R. R. Co., 52 Penn. St. 177 ; Steckel's Appeal, 64 id. 493; Jour- ney V. Gibson, 56 id. 57; State v. Vree- land, 34 N. J. L. 438; Belvidere v. War- ren R. R. Co., id. 193; Baldwin v. New- ark, 38 id. 158; Ex pane Graham, 13 Rich. (S. C. ) 277; Finney v. Acfeernian, 21 Wis. 268; Hopkins v. Jones, 22 Ina. 210; Miller v. Com., 5 W. & S. (Penn.) 488; Benjamin v. Eldridge, 50 Cal. 612; Smith V. Humphrey, 20 Mich. 398; Stanbaugh v. Snoblin, 32 id. 296; Harrison . Hunt, 3 Den. (N. Y.) 274; Hill v. Boyland, 40 Miss. 618. Statutes of limi- tation pertain to the remedy, and not to the essence of the contract ; and it is in the power of the State legislatures to regu- late the remedy and modes of proceeding in relation to past as well as future con- tracts, subject only to the restriction that it cannot be . exercised so as to take away all remedy upon the contract, or to im- pose upon its enforcement new burdens and restrictions which materially impair the value and benefit of the contract. Briscoe v. AnketeU, 28 Miss. 361 ; Swick- ard V. Bailey, 3 Kan. 507; Nelson v. Snorth, 1 Overt. (Tenn.) 33. §12.] WHAT STATUTE GOVERNS. 43 period of limitation upon municipal bonds issued for sale in a foreign market. In sucli cases, the statute in force when the bonds were issued is treated as being a part thereof, so that it cannot, as to such bonds, be repealed ; ^ and especially would this be the case if the limitation was fixed by the statute authorizing the issue of the bonds. Seg. 12. What Statute governs. — If before the statute bar has become complete the statutory period is changed, and no mention is made of existing claims, it is generally held that the old law is not modified by the new, so as to give to both statutes a proportional effect ; but that the time past is effaced, and the new law governs. That is, the period provided by the new law must run upon all existing claims, in order to constitute a bar.* In other words, the statute in force at the time the action is brought controls/ unless the time limited by the ^ Peerless v. City of Watertown (Wis.), 6 Biss. (U. S. C. C.) 79. '^ Henry v. Thorpe, 14 Ala. 103; Mar- tin V. Martin, 35 id. 560; Howell v. How- ell, 15 Wis. 55; United States v. Ballard, 3 McLean (U. S.), 469 ; Forsyth v. Ripley, 2 Greene (Iowa), 181. But see Pollard v. Tait, 38 Ga. 439. In Gilman v. Cutts, 23 N. H. 376, an action was brought on a note dated Oct. 1, 1838, payable on demand. The plaintiff brought his action Jan. 27, 1849. A new statute of limitations took effect March 1, 1843, at which time the note was not barred by the old statute. The court held that the new statute was the one applicable to the action. In Indiana, it is said to be a general rule that the statute in force at the commencement of the action controls. State V. Clark, 7 Ind. 468. See also Moore V. Lobbin, 26 Miss. 394; Hazlett v. Critch- field, 7 Ohio (Part 2), 153. 8 Patterson v. Gaines, 6 How. (U. S.) 656; Marston «. Seabury, 3 N. J. L. 435; Pritchard v. Spencer, 2 Ind. 486; Eoot v. Bradley, 1 Kan. 430; Walker v. Bank of Mississippi, 7 Ark. 500; Phares v. Wal- ters, 6 Iowa, 106; Moore u. Lobbin, 26 Miss. 394; Gilman v. Cutts, 23 N. H. 376. Provided a reasonable time has been given ibr the bringing of actions upon existing claims. Sampson «. Sampson, 63 Me. 328. In Guilotell v. Mayor of New York, de- cided by the New York Court of Appeals, Jan. 7, 1882, 25 Alb. Law Jour. 315, in an action for personal injuries caused by a defective sidewalk, it appeared that the injury occurred in 1873. At that time. by the former code, the limitation was six years. "By the charter of New York a demand must be made upon the comp- troller, requiring him to adjust a demand against the city thirty days before bringing an action thereon." On the 26th of May, 1876, the code was amended so as to limit an action for an injury to the person to one year after its accruing. This amend- ment was to take effect July 1, 1876. Plaintiff commenced this action in March, 1877. It was held that, irrespective of the question of the power of the legislature to enact statutes of limitation that operate retrospectively, the statutes of six years and not that of one applied to plain- tiff's right of action. The provisions of section 73 of the old code, that " this title shall not extend" "to cases where the right of action has already accrued, but the statutes now in force shall be appli- cable to such cases," were not limited to the date of the adoption of that code, but operated prospectively. The words "al- ready" and "now" in that section are to be taken distributively, and apply not merely to the date of the original enact- ment, but to any subsequent amendment as of the date of such amendment. Causes of action "already accrued" are intended and saved, and the "statutes now in force " applied as well at the date of a change effected by an amendment as at the date of the change accomplished by the original law. In Ely v. Holton, 15 N. Y. 595, in construing another section of the old code, this court gave such distributive character to the use of the word ' ' thereafter," hold- 44 STATUTES OF LIMITATION. [chap. I. old statute for commencing an action has elapsed, while the old statute was in force, and before the suit is brought, in which case the suit is barred, and no subsequent statute can*renew the right or take away the bar.^ The question, however, as to whether the statute is to have a retrospective operation is one of construction, to be determined from the language of the act and the intention of the legislature to be gathered from the act itself and the subject-matter to which it applies ; the rule being, as previously stated, that a statute will not be permitted to have a retrospective operation unless such was clearly the intention of the legislature.'' In a Georgia case,' where a statute was passed Jan. 1, 1863, pro- viding for the acquisition of title to laud by prescription as a substitute for a previous statute, the court held that possession which had been running before that act was passed, and was ripening into a title, was not lost, as such was not the evident intention of the legislature, arid the defendant was permitted to tack the time already passed to that required by the new statute.* In Michigan,^ a statute passed in 1867 provided that " every action upon a judgment rendered in a court of record of the United States, or this or any other State, shaU be brought ing it to apply at the date of the enact- ment, and also at the date of an amend- ment. See also Matter of Peugnet, 6TN.Y. Hi. See Acker v. Acker, 80 N. Y. 143, where it was held that unless the new statute saves existing claims from its oper- ation, it applies to them as well as others. A harsh and unreasonahle inference of legislative intention is not to be drawn, when the language of the act fairly and naturally admits of one not only more just and wise, but in better harmony with an intention already expressed, and a general system intended to be consistent and uni- form. PlaintifTs action was not barred by the amendment of 1876. 1 Baldro w. Tolmie, 1 Greg. 176; Brad- ford V. Brooks', 2 Aik. (Vt.) 284; McKin- ney v. Springer, 8 Blackf. (Ind.) 506; "Woart V. Winnick, 3 N. H. 473; Lewis v. Webb, 3 Me. 326; Holden o. James, 11 Mass. 396 ; Piatt v. Vittier, 1 McLean (U. S.), 146; Davis v. Minor, 2 Miss. 183; Stipp V. Brown, 2 Ind. 647. In Kinsman V. City of Cambridge, 121 Mass. 558, it was held that the statute of 1874, extend- ing the time for filing a petition for dam- ages for land taken to widen a street, did not revive an action already barred by the statute existing before the new act was passed. 2 For instances in which it has been held that a statute of limitation does not apply to causes of action which existed before its passage, see Weber v. Man- ning, 4 Mo. 229 ; Thompson u. Alex- ander, 11 111. 54; Hall v. Minor, 2 Root (Conn.), 223; Central Bank v. Solomon, 20 Ga. 408 ; Paddleford v. Dunn, 14 Mo. 517 ; Ashbrook v. Quarles, 15 B. Mon. (Ky.) 20 ; Moore v. McLendon, 10 Ark. 512 ; Calvert v. Lowell, id. 147 ; Deal v. Patterson, 12 La. An. 602 ; Stine v. Ben- nett, 13 Minn. 153 ; Whitworth v. Ter-' guson, 18 La. An. 60. In Eaton v. Supervisors of Manitowac, 40 Wis. 668, an act prescribing a new limitation of time for suing a county to recover back sums of money paid to it upon illegal tax certifi- cates was passed in April, 1867, but was not to take effect until Jan. 1, 1868 ; and the court held that the purpose and effect of this provision was to prevent the bar of the statute taking effect upon rights of action acquired before Jan. 1, 1868, and that this was a reasonable period within which to bring an action. « Pollard V. Tait, 38 Ga. 439. * But see Henry ». Thorpe, 14 Ala. 103, where a contrary rule was established. * Harrison v. Metz, 17 Mich. 377. § 13.] EFFECT OP CHANGE IN. 45 within ten years next after the judgment was entered and not after- wards ; and any action upon such judgment which shall not be com- menced within the time above specified shall be forever thereafter barred," was held to be prospective and applicable only to judgments rendered after the act took effect. In Pennsylvania, an act of limita- tion was passed in 1785, making twenty-one years' adverse possession of lands necessary to give title to the person in possession, and it was held that the act was retrospective, and applied as well to rights then existing as to those afterwards arising.^ In Massachusetts, in an early case,^ Shaw, C. J., in discussing the question as to whether a person has a vested right to plead the statute, intimated that it might not be proper in technical strictness to say that he had, especiallj' to the extent that it could not be taken away by the legislature. But in that case, while the court expressed a doubt upon this point, it nevertheless re- fused to give such an application to the statute under consideration, or to admit that the legislature possessed the power to take awaj' such right after the bar had become complete. And in a later case before the courts of that State ' the same doubt upon this question was ex- pressed. But whatever doubt may exist upon this point in Mas- sachusetts, the courts elsewhere have entertained none, but have universally held that, after the statute bar has become complete, the debtor has acquired a vested right under these statutes, which the legis- lature cannot defeat or take awa_y by subsequent legislation.* There is much ground for argument upon either side of this question, and many plausible reasons can be advanced both for and against the general doctrine held as indicated supra. It is generally conceded that these statutes only relate to the remedy, and do not operate to extin- guish the right. In other words, they are not treated as elements entering into the contract, so that the legislature is precluded from shortening or lengthening the period of limitation at any time before the bar has become complete.' Sec. 13. Effect of Change of Statute as to Crimes. — In reference to crimes, where the statute fixes a period within which an indictment for certain offences shall be found, while perhaps it cannot technically 1 Parker v. Gonsalus, 10 S. & E. 284 ; Lewis v. Webb, 3 Me. 326 ; Wood- (Penn.)147. man v. Fulton, 47 Miss. 682; Naught ». » Wright V. Oakley, 5 Met (Mass.) O'Neal, 1 111. 36 ; Girdnev «. Stephens, 400. 1 Heisk. (Tenn.) 280 ; Parish v. Eager, 15 8 Ball i>. Nye, 99 Mass. 38. Wis. 532 ; Stlpp v. Brown, 2 Ind. 647 ; * Atkinson v. Danlap, 50 Me. Ill ; McKinney ». Springer, 8 Blackf. (Ind.) Bogg's Appeal, 43 Penn. St. 512 ; Ryder 506 ; Mai-tin v. Martin, 35 Ala. 560. V. Wilson, 40 N. J. L. 9 ; Sprecker v. ^ Gilman v. Cutts, 23 N. H. 376 ; Wakeley, 11 Wis. 432 ; Baldro v. Tolmie, Martin v. Martin, 35 Ala. 560 ; Howell v. I Oregon, 176 ; Piatt ». Vittier, 1 Mc- Howell, 15 Wis. 65 ; Cook v. Kendall, 13 Lean (U. S. C. C), 146 ; Holden v. James, Minn. 324 ; Forsyth v. Eipley, 2 Greene II Mass. 396 ; Woart v. Winnick, 3 N. H. (Iowa), 181. 473 J Bradford v. Brooks, 2 Aiken (Vt.), 46 STATUTES OF LIMITATION. [CHAP. I, be said that the criminal, by the lapse of the statutory period, has acquired a vested right under the statute, yet it may be said that while the State retained the power to prosecute and punish for the crime at any time before the statute had run thereon, by having neglected to do so it is at least treated as having condoned the crime, so that it is afterwards estopped from prosecuting for it, as much as it would be from withdrawing an absolute and unconditional pardon after it had once been granted and delivered. But it has recentlj^ been held by a court of high authority in this country that the same principle applies in this respect in criminal as in civil cases.^ " Before committing any offence," says Dixon, J., in a very able and exhaustive opinion in the case referred to, " the citizen had a natural and absolute right to life and libertj'. By his offence the State acquired the right to deprive him of either to the extent prescribed 'by the violated law. The citizen re- mained in the possession of life and liberty, but his possession was liable to be disturbed by means of a prosecution to be instituted by the State according to law. His offence, however, was local, and subjected his possession to impairment only within the jurisdiction whose laws he had, broken. In these respects the relation between the offender and the State corresponds to that between one having the possession of lands, without the right of possession, and one entitled to invade that possession by action at law. In both cases there is a right of suit which must be pursued, if at all, within and under the laws of a single jurisdiction, and in both cases the wrong-doer holds a possession which only such legal prosecution can take awaj'. " In view of this position of things the statute of limitation declares that no person shall be prosecuted, tried, or punished for an offence, unless the indictment be found within two years after the crime. This in effect enacts that when the specified period shall have arrived the right of the State to prosecute shall be gone and the liability of the offender to be punished — to be deprived of his liberty — shall cease. Its terms not only strike down the right of action which, the State had acquired by the offence, but also remove the flaw which the crime had created in the offender's title to libertj'. In this respect its language goes deeper than statutes barring civil remedies usually do. They ex- pressly take away only the remedy bj^ suit, and that inferentially is held to abate the right which such remedy would enforce, and perfect the title which such remedy would invade ; but this statute is aimed directly at the very right which the State has against the offender, the right to punish, at the only liability which the offender has incurred, and declares that this right and this liability are at an end. Corre- sponding provisions in a statute concerning lands would undoubtedly be held to extinguish every vestige of right in him who had not asserted his claim, and to perfect the title of the possessor. Giving them the 1 Moore v. State, 40 N. J. L. 384. § 13.] EFFECT OF CHANGE IN. 47 same force regarding crimes, they annihilate the State's power to pun- ish, and restore the oflFender's rights to their original status." And the court further held that this condition is unassailable bj' sub- sequent legislation, repudiating the doctrine advanced by Mr. Bishop ^ in the work referred to, that a criminal statute of limitation simply withholds from the courts jurisdiction over the offence after the specified period, and that it is competent for the legislature to revive the old jurisdiction, or create a new one, when the prosecution may proceed. The doctrine stated by this text-writer is not only without any founda- tion in reason, but is also wholly unsustained by authority. Dixon, J., in the case last cited, in commenting upon this statement, pertinently said: "Evidently this doctrine would upset the uniform train of decisions in civil causes, and, moreover, it would be a strained and unnatural construction of our act, to say that it simply withholds jurisdiction from the courts. Its language is, 'No person shall be prosecuted, tried, or punished.' It does not relate to the courts, but to the person accused. The answer, which under it the respondent must make to an accusation before the tribunal which once had the right to punish him, is not that the court has no jurisdiction to inquire into his guilt or innocence and pass judgment, but that after inquiry the court must pronounce judgment or acquittal. And probably no one would contend that, after such judgment, any change in the law would legally subject the defendant to a second prosecution. Yet an acquittal by a coui-t without jurisdiction is void.'' It cannot be maintained, then, that the act impairs jurisdiction." In reference to changes in the period of limitations made before the statute bar has become complete, it is held, in reference to criminal as in civil actions, that the legislature may in such cases either repeal, extend, or otherwise change the statute, and make it applicable to offences alreacfy committed.' In the case last cited the legislature amended the statute relating to the limitation of the crime of forgery, so as to extend the period of limitation from two to five years. Previous to such change the crime with which the respondent was charged had been committed, and he claimed that the legislature had no power to change the statute so as to deprive him of the benefit of the statute existing when the crime was committed. But the court held otherwise, and Green, J., in passing upon this question, said : •• At the time the act of 1877 was passed the defendant was not free from conviction by force of the two years' limitation of 1860. He there- fore had acquired no right to acquittal on that ground. Now, an act of limitation is an act of grace purely on the part of the legislature. Especially is this the case in the matter of criminal prosecutions. The State makes no contract with criminals, at the time of the passage of 1 Statutory Crimes, § 266. » Com. v. Duffy (Penn.), 23 Alb. L.J. « 1 Hawkins, P. C. c. 35. 292. 48 • STATUTES OP LIMITATION. [CHAP. I. an act of limitations, that thej' shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are matters of public policy only. They are entirely subject to the will of the legislative power, and may be changed or repealed altogether, as that power may see fit to declare. Such being the character of this kind of legislation, we hold that, in any case where a right to acquittal has not been absolutely acquired by the period of limitation, that period is subject to enlargement or repeal, without being obnoxious to the constitutional prohibition against ex post facto laws." In New York such statutes are held not to apply to crimes committed before the statute was changed, unless expressly included therein, adopting the rule in that respect applicable in civil cases,^ leaving the question as to what the rule would be where the statute is expressly applied to crimes already committed, but not barred, undecided. Sec. 14. Rule when Title to Land is concerned. — When a title to land has been acquired by adverse possession under a statute, the legislature does not possess the power to destroy the same, and a repeal of the statute does not divest the title ; but at any time before title has become vested it may be repealed or altered, either by shortening or lengthening the period required to make the title absolute.'' 1 People V. Lord, 12 Hun (N. Y.), 282. » Knox v. Cleveland, 13 Wis. 245. §15.J APPLICATION OF, TO SIMPLE CONTEACTS. 49 CHAPTER II. What Actions on Simple Contracts mat be barred. 21. 22. Seo. 15. 'So Limitation at Common Law. Seo. 16. Causes of Action on Simple Con- i tracts embraced by Statute of James I. 17. Deposits with Bankers, within 23. Statute of James. 18. Distinction when Deposit is spe- 24. cial. 25. I 19. Illustrations of Application of 26. Statute in Special Cases. 27. 20. Assumpsit, for what it lies, 28. For Torts, Assumpsit lies, when. Lapse of Statutory Period does not give Title to Pledgee of Property, except. Clauses in the Several Statutes that cover Simple Contracts. Account. Nature of Action. Debt. Covenant. Suits in Admiralty. Climes. Sec. 15. No Limitation at Common Law. — At the common law there existed, as we have seen, no limitation to the time within which an action ex contractu could be brought, notwithstanding a dictum of Brac- ton to the contrary.^ In torts, indeed, the rule actio personalis moritur cum persona " prevailed, and on the death of either party the right of action was at an end. But in actions arising out of contract the right of action descended, and might exist in the plaintiff's representatives against the representatives of the defendant for an unlimited time. At length, however, the statute of 21 James I. c. 16, was passed, which 1 "Omnes actiones infra calum finem habere debent." Bracton, Lib. 2. There is «n old maxim to the contrary of this some- times quoted, — "a right never dies." In People ex rel. Millard v. Chapin, lOi N. Y. 96, reversing 40 Hun, 386, it was held, that the discretion of the court to grant or refuse a writ of mandamus is not absolute, but is governed by legal rules, and its exercise is subject to review here. The suiEciency of the evidence upon which is based a decision of the State comptroller, as to who is entitled to the purchase money paid upon an invalid sale of land for taxes, which he is required to refund out of the State treasury, may not be reviewed by mandamus ; nor can the decision, even if wrong, be so rectified. The writ does not lie to compel an ofScer exercising judicial functions to make any VOL. 1. — 4 particular decision, or to set aside a decis- ion already made. The mere record of a deed from the purchaser, at an invalid tax sale, is not notice to the comptroller of the right of the grantee to have the purchase money refunded to him. Although the statute of limitations does not apply to the issuing of a writ of man- damus, the writ should not be granted after the period fixed by the statute as a bar to an action has expired, when the delay is unexplained and unaccounted for. And the writ may also, in the discretion of the court, be denied when the delay in moving it is unreasonable, although it falls short of the time allowed for commencing actions. * The application of this rule has been much diminished by statute in some of the States of this country. 50 STATUTES OF LIMITATION. [CHAP. II, remains still in force in England, and substantially in this country, at least so far as section 3 of such act is concerned, so that the construc- tion put thereon by the English courts will aid us materiallj' iu the con- struction of our statute. The third section of this statute is as follows : "And be it further enacted, that all actions of quare 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 of merchandise between merchant and merchant, their factors or servants ; all actions of debt grounded upon any lending or contract without specialty ; all actions . of debt for arrearages of rent, and all actions of assault, menace, bat- tery, wounding, or imprisonment, or any of them, which shall be sued or brought at any time after the end of this present session of Parlia- ment, shall be commenced and sued within the time and limitation hereafter expressed and not after; (that is to say), the said actions upon the case (other than for slander), and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass quare clausum 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 or suits and not after ; and the said actions of tres- pass, assault, battery, or wounding, imprisonment, or any of them, within one year next after the end of this present session of Parliament, or within four 3'ears next after the cause of such actions and not after ; and the said actions upon the case for words, within one year next after the end of this present session of Parliament, or within two years next after the words spoken and not after." Sec. 16. Causes of Action on Simple Contracts embraced by Statute of James I. — The statute of James has been the subject of much judicial criticism, and has been described as a statute " worded very loosely." ^ But the circumstance that it has prevailed for so long a period without essential modification is much in its favor, although its beneficial opera- tion is largely due to an extension of its benefits by liberal construction. Thus, although there is no express mention of the action of assumpsit, which was at the period of its enactment the most important of all actions, yet as it was clear that this omission was unintentional,^ it was construed as embracing that action by fair intendment, and as 1 Pakke, B., in Inglis v. Haigh, 8 M. is certainly rather strong. Yet if assump- & W. 769. sit were omitted from the proviso, the ^ Dbnman, C. J., in Piggott v. Eush, omission was palpably so unintended that 4 Ad. & El. 912, said : " It seems to he the courts perhaps were justified in strain- hardly disputed that the plaintiff may re- ing the language." The other judges, LiT- cover if assumpsit for unliquidated damages tlbdale, Patteson, and Coleridge, based be within the proviso in the seventh section, their assent on the ground that they could IndeMtatus assumpsit is held to be so in not overrule the cases, and intimated that Chandler v. Villette, 2 Saund. 120, and in if that had been a ease of first impression Crosier v. Tomlinson, 2 Mod. 71, assump- the rule would be different, sit is said to be included in trespass. That §16.] APPLICATION OF, TO SIMPLE CONTRACTS. 51 coming within the reason of the statute, and also as coming under the head of trespass on the case.'' So, too, although the saving clause in cases of disability does not in terms mention any actions on the case except actions on the case for words, yet it has always been construed as extending to all actions on the case, from the manifest inconvenience of a contrary construction.'^ As construed by the courts, this section is comprehensive, and com- prises nearlj' all simple contracts, or causes of action which fall under the head of assumpsit. Foreign judgments, ranking only as simple- contract debts, come under this head ; ' so also do promissorj- notes, bills of exchange, checks,* and all written contracts or obligations not under seal or of record,^ as well as all unwritten or parol contracts upon which an action of assumpsit may be predicated." Actions by attor- neys to recover their fees are within the section ; for though the status of an attorney is " of record,'' yet his fees are not of record.^ But the lien of an attorney on deeds in his possession for his costs may, of course, remain after the statutory period.' The rule as to an attorney's bill may be said to be that it is subject to the statute, and that it only becomes due so that the statute begins to run thereon from the time judgments are entered and executions issued.' In other words, so long as anything remains to be done by him to protect the interests of 1 Harris v. Saunders, 4 B. & C. 411 ; Bacon's Abr., tit. Limitations (E), 1 ; Leigh V. Tliornton, 1 B. & Aid. 625 | Beatty v. Burnes, 8 Cr. (U. S.) 98 ; Chandler v. Vil- lette, 2 Saund. 120 ; Haven v. Foster, 9 Pick. (Mass.) 112; Crosier v. Tomlinson, 2 Mod. 71 ; Baldro v. Tomlie, 1 Oreg. 176 ; Williams v. Williams, 5 Ohio, 444 ; Malt- by V. Cooper, 1 Morris (Iowa), 59. In Phillips V. Cage, 12 S. &M.I (Miss.) 141, it was held that actions of assumpsit upon open accounts are not embraced under the words "actions of account and upon the case," but that they relate only to special actions of that character. 2 Parke, B., in Inglis v. Haigh, 8 M. & W. 780; Chandler B. Villette, 2 Saund. 120. * Duplex V. De Eoven, 2 Vern. 540 ; Harris o. Saunders, 4 B. & C. 411 ; Hub- bell V. Coudrey, 5 Johns. (N. Y.) 132; Bissell V. Hall, 11 id. 168 ; Pease v. How- ard, 14 id. 470 ; Hay d. Fisher, 2 M. & W. 722 ; Walker v. Witter, Doug. 1. But in Pennsylvania it has been held that a plea of actio non accrevit infra sex annos is not a good plea when the judgment is founded on a specialty. Eichards v. Bickley, 13 S. &R. (Penn.) 395. * Chievly v. Bond, 4 Mod. 105 ; Brush V. Barrett, 16 Hun (W.-Y.), 409, affirmed 82 N. Y. 300. The taking of a note, bill of exchange, or check is prima facie evi- dence of payment of a debt for which it is given, but does not necessarily operate as a discharge of such debt. Wallace v. Agry, 4 Mas. (U. S. C. C. ) 336 ; Lord v. Bigelow, 127 Mass. 185 ; Amos v. Ben- nett, 125 id. 120 ; Swett v. Southworth, id. 439 ; Graves v. Shulman, 59 Ala. 406 ; Feamster v. Withrow, 12 W. Va. 611 ; and the nature of the transaction and what transpired at the time is generally con- clusive upon this question, Cadiz Bank v. Slemmons, 34 Ohio St. 142 ; McKee n. Hamilton, 33 id. 7. Bills and notes are not such matters of account as are referred to in the statute under the head of " mer- chants' accounts," but are rather to be regarded as "accounts stated." Chievly v. Bond, 4 Mod. 105. ' Mill-dam Foundry v. Hovey, 21 Pick. (Mass.) 417. « Hall V. Hall, 8 N. H. 129. ' Oliver v. Thomas, 3 Lev. 367. ' In re Broomhead, 5 D. & S. 52. 9 Pruyn v. Corastock, 56 Barb. (W. Y.) 9 ; Adams v. Fort Plain Bank, 36 N. Y. 255 ; Mygatt v. Wilcox, 45 id. 306. 52 STATUTES OF LIMITATION. [chap. II. his client in the litigation or matter out of which his claim arises, his claim for services is saved from the operation of the statute.* Actions of assumpsit b^' a bankrupt's assignees were held within the section, on the ground that, notwithstanding that the assignment was bj' stat- ute, yet the assignees could only stand in the bankrupt's place, and have what right and remedj' he had." Money lent on a deposit of title-deeds creates only a simple-contract debt ; but this is subject of course to the question of lien.' The liability of an equitable assignee of leaseholds for the covenants thereon is within the section.* Sec. 17. Deposits -with Bankers, -within Statute of James. — The ordinary dealings of bankers and customers also fall within the sec- tion, inasmuch as sums paid to the credit of a customer with his banker, though usually called deposits, are in truth loans to the banker ; ' and it is a fallacy to liken the dealings of a banker to the case of a deposit, to which, in legal effect, thej- have no sort of resem- blance, as money paid to a banker becomes at once a part of his general assets, and he is merely a debtor for the amount. In fact, money deposited with a banker by his customer in the ordinarj^ way is money lent to the banker, with a superadded obligation that it is to be paid when called for by check ; ° and consequently if it remains six 1 Hale V. Ard, 48 Penn. St. 22 ; Lichty V. Hiigus, 55 id. 434. In Foster v. Jacks, 4 Watts (Penn.), 334, it was held that the statute does not commence to run against an attorney's claim so long as the debt which the attorney seeks to collect is un- paid. In Coleman v. Whitney, 62 Vt. 123, the complainant brought a bill in equity to enforce a mortgage which was given to secure the performance of an agreement for her support during life. The mortgage was given by her brother, and the agreement entered into twenty- seven years before the action was brought, and during all that time she had slept upon her rights, and never called upon her brother to carry out the agreement ; nor, although she lived in his family for about eleven years after the agreement was made, and had a settlement with him, and took his note for $800, as the result of such settlement, did it appear that the subject of carrying out the agreement was ever referred to. The court held that the statute had not run against the agree- ment, and that she had not been guilty of such laches as defeated her remedy thereon. The ground upon which the court placed its decision was, that there was no breach of the contract until she had called upon her brother for support. 2 Bac. Abr. Lim. (E) 1 ; South Sea Co. V. Wymondsell, 3 P. W. 144. And see Index, S. C. Bankruptcy. * Brocklehurst v. Jessop, 7 Sim. 438. ' Sanders v. Benson, 4 Beavan, 450. ^ Foley V. Hill, 1 Phill. 399 ; Pott v. Clegg, 16 M. & W. 321 ; Carr v. Carr, 1 Mer. 541, n. ; Devayue v. Noble, id. 568. 6 Wray v. Tuskegoe Ins. Co., 34 Ala. 68 ; Robinson v. Gardner, 18 Gratt. (Va.) 609. Deposits made with bankers may be divided into two classes: 1. Those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter ; and, 2. That kind pecu- liar to banking business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the banker ; and the latter, in considera- tion of the loan of the money, and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand. Marine Bank v. Fulton Bank, 2 Wall. (U. S. ) 252. In the case of a, general deposit, banks are authorized to use, in discounting, &c., the money deposited, as a temporary loan, liable to be withdrawn at any moment by the depositor, the deposit being a debt due from the bank to the depositor, which raises an implied assumpsit for its repay- §17.] DEPOSITS. 53 years without payment of principal or interest, the right to recover it in England is held to be barred. And this is the case even although there is an agreement to pay interest, which it is the banker's duty to enter to his customer's credit ; ^ and in the case cited in the last note it was held that notwithstanding that the debt of a bank to customers is one of a special nature, and for which no action can be brought with- out a previous demand, yet the statute runs within the period fixed for the limitation of such claim if no demand is made.^ But in a Delaware cur in the judgment of the rest of the court, that the set-off in the present case cannot be made available ; for even as- suming that this account ought not to be treated as money lent, hut that there are peculiar circumstances in a banking ac- count which distinguish it from any other, yet none of those circumstances appear on these pleadings, so as to justify us in con- sidering this case differently from what we should if it were an ordinary case of money lent ; and I therefore concur with the rest of the court, that the present rule must be discharged. At the same time, I must, certainly with considerable doubt and diffidence, confess the hesitation of my own opinion, whether there is not special contract between the banker and his cus- tomer as to the money deposited, which distinguishes it from the ordinary case of a loan for money. It seems to me that it is a question for the jury, who ought to decide what is the liability of the banker, and whether the money deposited with him is money lent or not. I could not concur in the judgment of the rest of the court without expressing this doubt, in which, however, they do not partake, as they are of opinion that money in the hands of a banker is merely money lent, with the superadded obligation that it is to be paid when called for by the draft of the customer." Parke, Alderson, and RoLFE were the other members of the court. See Thompson v. Bank of North America, 82 N. Y. 1, where it is held that the statute does not begin to run on a deposit until a demand has been made. Foley V. Hill, ante. But in the latter case there was no charge in the bill that the bankers had fraudulently or through gross carelessness omitted their duty to enter the interest. ^ Pothier on Contracts, qnoted in Pott II. Clegg, 16 M. & -W. at p. 325. ment ; in the case of a special deposit they have no such right. Foster v. Essex Bank, 17 Mass. 479 ; Matter of Franklin Bank, 1 Paige (N. Y.), 249 ; Bank of Kentucky ». Wister, 2 Pet. (U. S.) 318 ; Albany Commercial Bank v. Hughes, 17 Wend. (N. Y.) 94 ; Coffin v. Anderson, 4 Blackf. (Ind.) 395 ; Dawson v. Real Estate Bank, 5 Ark. 283. In the case of a general depositor, the money, checks, or bills which he deposits become the property of the bank, and he becomes a creditor. If they are stolen, lost, or destroyed, or become of no value, the bank sustains the loss, and he is still a creditor. He has no claim upon the money or bills deposited. The officers may use them as they please, for the gen- eral purposes of the institution, and he is, to all intents, a general creditor to the bank. There is an implied assent on the part of the depositor, and the agents of the institution are legally authorized to issue bills and discount notes on the credit of such deposits. The depositor, there- fore, has no valid claim to be paid in pref- erence to the bill-holders, who are also general creditors. Matter of Franklin Bank, 1 Paige (N. Y.), 249; s. p. Ellis u. Linck, 3 Ohio St. 66. 1 In Pott V. Clegg, 16 M. & W. 321, Pollock, C. B., in discussing this question, said : "The question in this case is, how far the defendant is entitled to avail him- self of an old banking account, on which a large balance has been standing for many years, and to which the statute of limi- tations would apply under ordinary cir- cumstances. And a question arose whether this could be considered in any other light than an ordinary debt, there being, un- doubtedly, several authorities in which it is distinctly laid down that money de- posited in a banker's hands is equivalent to money lent ; and the majority of the court are of that opinion. I entirely con- 54 STATUTES OP LIMITATION. [chap. case,^ it was held that an action will not lie against a bank for a de- posit, until after a demand has been made therefor ; and such seems to be the rule generally adopted in this country.^ The engagement of a bank with its depositors is not to pay absolutely and immediately, but when payment shall be required at the banking-house, and therefore it is not in default or to respond in damages until demand and refusal ; nor does the statute of limitations begin to run until demand has been duly made.^ But if the bank has rendered an account claiming the deposit as its own,' or if it has suspended payment and closed its doors against its creditors,^ or has done any act that operates as a notice of its intention not to pay the deposit, a demand is dispensed with, and the statute begins to run from the date of such act." In an English case, Pollock, C. B., suggested a doubt whether. the question was not one for jury to decide whether money so lent were a loan or deposit.'' Sec. 18. Distinction -wrhen Deposit is special. — The ease is different where the banker has notice that the fund is a trust fund, even though he has no notice what are the particular trusts,' or where monej- is deposited in a sealed bag, or which may otherwise be ear-marked and recovered in specie. ' The liability of an attorney for money of his client which has come to his hands, in the absence of fraud, is simply that of an agent or factor, and creates a simple-contract debt only. ^^ 1 Johnson v. Farmers' Bank, 1 Harr. (Del.) 117. 2 Downes v. Bank of Cliarlestown, 6 HiU(N. Y.), 297. 2 Girard Bank v. Bank of Penn Town- ship, 39 Penn. St. 92 ; Adams v. Orange County Bank, 17 "Wend. (N. Y.) 514. * Bank of Missouri v. Beroist, 10 Mo. 519. * Watson u. Phenix Bank, 8 Met. (Mass.) 217. ^ Farmers' Bank v. Planters' Bank, 10 G. & J. (Md. ) 422. In Bank of British North America v. Merchants' Nat. Bank of New York City, 91 N. Y. 106, it appeared that on March 9, 1870, plaintiff, who had a deposit ac- count with defendant, drew its check pay- able to the order of H. On the same day the check was certified by the defendant's teller. On the next day it was presented by some person other than H., with her indorsement forged thereon, and was paid by the defendant and the amount thereof charged to the plaintiff. On March 17, 1870, in accordance with the usual course of dealing between the parties, the plain- tiff's pass-book was written up, balanced, and returned ; it contained the charge of the check, which was also delivered up as a voucher. The plaintiff had no notice or knowledge of the forgery until January, 1877 ; in June thereafter, it tendered the check and demanded of the defendant pay- ment of the amount thereof, and brought this action to recover the same in Novem- ber, 1877. It was held, that the action was not barred by the statute of limita- tions ; that the certification did not make the check due without demand ; that thb payment upon the forged indorsement dis- charged no part of defendant's indebted- ness ; that plaintiff lost none of its rights by receiving, under a mistake as to the facts, the check as one properly paid and charged to its account, and when it dis- covered the mistake, had the right to repudiate the charge, return the check, and claim payment. ' Pott V. Clegg, ante. ' Bridgman v. Gill, 24 Beav. 302. 9 Carr v. Carr, 1 Mer. 541, n. ; Devayne V. Noble, id. 568. " McCoon V. Galbraith, 29 Penn. St. 293 ; In re Hindmarsh, 1 Dr. & Sw. 129 ; Burdick v. Garrett, 5 Ch. 233 ; Watson v. Woodman, L. K. 20 Eq. 731. § 19.] SPECIAL DEPOSIT. 55 The rule is that where an attorney collects money for his client, the statute begins to run from the time of its receipt, and that, too, without regard to notice to, or a demand by, the client.^ But where the attorney has fraudulently concealed the fact that the claim is col- lected from his client, as if upon inquiry he informs him that it has. not been collected, when in fact it has been, the statute does not begin to run except from the time when the client discovers the fraud. Thus,, where a claim had been sent by an attorney to an agent in another State, and upon inquiry by his client he informed him that the claim was not collectible, when in fact it had been collected by such agent, it was. held that the statute did not begin to run until the time of the discovery of the fraud, and that, too, whether the attorney was or was not acting in good faith when he gave the answer.^ But where the plaintiff claimed against his attorney for money received on his behalf, the stat- ute was held not to be a bar to the summary jurisdiction of the court.' An action for mesne profits is held to be within the act.* Sec. 19. Illustrations of Application of Statute in Special Cases. — Money due by virtue of a custom is within this act.' So, too, is an action grounded on a by-law made by a company under its charter ; on, the ground, apparently, that although in one sense a by-law is grounded on the statute or charter which authorizes it, yet it Only operates- against an individual by virtue of his own assent.^ But, except where otherwise provided, actions founded directly upon a statute, a matter of record, or, in fact, any specialty, are not within the statute ; ' but the, rule is otherwise as to actions only indirectly founded upon a statute ' 1 Campbell v. Boggs, 48 Penn. St. 624; 13 0. B. 286, where private property has. Alexander v. Westmoreland Bank, 1 id. teen damaged by a public improvement, 395 ; Fleming v. Culbert, 46 id. 498 ; and the statute has given a remedy there- Glenn V. Cuttle, 2 Grant's Cas. (Penn.) for, the statute of limitations does not 273. apply, Hannuni v. West Che.ster, 63 " Morgan v. Tener, 83 Penn. St. 305. Penn. St. 475 ; nor does the statute apply See also Wickersham v. Lee, id. 416. to a statutory proceeding for the assess- * JEx parte Sharp, W., W. & D. 354. ment of damages for the construction of * Reade v. Reade, 5 Ves. 749. In a railroad, McClinton v. Pittsburgh, &c. Mitchell v: Mitchell, 10 Md. 234, the court E. R. Co., 66 id. 404 ; Delaware, &c. E. E. were equally divided upon the question, Co. v. Burson, 61 id. 36? ; nor to a muni- and the court below having held that the cipal assessment, Magee v. Com., 46 id. statute was a bar, the judgment stood. 358 ; Council v. Moyamensing, 2 id. 224. See Morgan v. Varick, 8 Wend. (N. Y.) But if a party resorts to his common-law 587, where the doctrine stated in the text remedy for such damages the statute ap- was held. plies. McClinton v. Pittsburgh, &o. E. R. ' Mayor of London v. Gorry, 2 Lev. Co., ante. In Knapp v. Clark, 30 Me. 174 ; s. 0. as City of London v. Goree, 1 244, it was held that an action on a judg- Vent. 298 ; Tobacco Company v. Loder, ment recovered under the Mill Act was 16 Q. B. 765. not within the statute. 6 Feltmakers' Co. v. Davis, 1 Strange, ' South Sea Co. •/. Wymonsall, 3 P. 385 ; Barber Surgeons of London v. Pel- Wms. 144. Thus, an action of assumpsit s6n 2 Lev. 252, lies upon an implied promise to discharge ' Cork & Bandon Railway Co. v. Goode, an obligation created by statute, Bath v. 56 STATUTES OP LIMITATION. [CHAP. n. or specialtj-. Thus, where an action for use and occupation lies for the recovery of the use of premises, although there is a lease under seal, the statute applies.^ So, where a surety upon a bond is compelled to pay money thereon for his principal, the statute runs upon his claim therefor, although it arose out of his obligation under a specialty.^ So, where a contract under seal is so executed as not to authorize a party injured by its breach to maintain an action thereon, he maj- bring assumpsit, and set up the contract by waj' of inducement.' So, where the terms of a sealed instrument have been varied by parol, the in- strument is therebj"^ reduced from a specialty to a simple contract, and assumpsit lies for its breach, and consequently the statute applies.* The statute applies to a set-off^ or any trust that is the ground of an action at law,° to town or city orders,' to a legac}' not charged on land,* to a vendor's lien,° to actions against a sheriff for money col- lected on execution,^" and, indeed, every claim or demand that may be made the ground of an action of assumpsit. In this country, in all of the States the statute expresslj' or by fair inference embraces the action of assumpsit, as in Maine,''^ Vermont,'"' Massachusetts,^' Con- necticut, New York, Delaware, Michigan, Wisconsin, Missouri, Arkansas, and Florida ; while in Rhode Island, New Jersey, Penn- sylvania,, Maryland, Virginia, North Carolina, South Carolina, Geor- gia, Alabama, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, Iowa, California, Oregon, Minnesota, Kansas, Nevada, and Ifebraska,-'* the same class of actions is embraced under the head of Freeport, 5 Mass. 326 ; titiless some other implied trusts, Wilmerding v. E.uss, 33 remedy is expressly given, Hillsboro v. Coun. 67 ; but to open, continuing trusts Londonderry, 43 N. H. 451 ; Watsou v. the statute has no application, so long as 'Cambridge, 15 Mass. 286. the trust continues, Wilmerding v. Russ, 1 Conover v. Conover, 1 N. J. Eq. 403. ante; Johnston «. Humphries, 14 S. & E. 2 Penniman v. Vinton, 4 Mass. 276. (Penn. ) 394 ; Seymour v. Freer, 8 Wall. ^ Hitchcock V. Lukens, 8 Port. (Ala.) (U. S.) 202; where, however, the fiduciary 333. relation ceases, the relation of debtor and * Hydeville Co. v. Eagle R. R. & Slate creditor exists, and the statute applies Co., 44 Vt. 395 ; Mill-dam Foundry v. from that time. Bone's Appeal, 27 Penn. Hovey, 21 Pick. (Mass.) 417 ; Munroe ^. St. 492; Bull v. Lavvson, 4 W. & S. (Penn.) Perkins, 9 id. 298. 557. See chapter on Trusts. Construc- ' Nolin V. Blackwell, 30 N. J. L. 170. tive trusts are within the statute. Ash- « Winser v. Barnet, 4 Wash. (U. S. C. C.) urst's Appeal, 60 Penn. St. 290. 631. The effect of the statute upon trusts ' People v. Lincoln, 41 Mich. 415, ' will be made the subject of a separate ^ Souzer v. De Meyer, 2 Paige Ch. chapter ; but it may be sta,ted here that (N. Y.) 574 ; American Bible Society v. the rule that the statute does not apply to Hebard, 41 N. Y. 619. cases where the technical relation of trus- 9 Borst v. Corey, 15 N. Y. 505. tee and cestui que trust exists, only applies n> Elliot v. Cronk, 13 Wend. (N. Y.) 85. in cases over which courts of equity have M Maine Rev. Stat. o. 146, § 9. exclusive jurisdiction, Cocke v. M'Gin- 12 Comp. Stat. 0. 58. nis, M. & Y. (Tenn.) 361 ; nor where the w Rev. Stat. c. 197. trustee disclaims the trust. Walker v. " See Appendix, statutes of the several Walker, 16 S. & R. (Penn.) 379; nor to States. § 20.] ASSUMPSIT. 57 debt, case, or actions upon written or unwritten contracts. In Lou- isiana all personal actions are barred after tliirty years ; ^ while in Texas the statute embraces written contracts, and provides that they shall be barred in four years, and actions of debt upon contracts not in writing, in two years, which includes all that class of actions usually embraced under the head of assumpsit. Thus it will be seen that the construction put upon the statute 21 James I. by the English court is of material importance in the construction of our own, because while, as has already been said of the statute of James, it is " loosely worded," so the same observations are also applicable to some of our own stat- utes, and in nearly all of them there are man}' matters left to be sup- plied b}' intendment. In order to ascertain to what class of actions the statute applies, it is necessary to ascertain what classes of claims may be the foundation of assumpsit or debt. Sec. 20. Assumpsit, for what it lies. — The action of assumpsit, as it formerlj^ existed as an active remedy, and as it now exists in all the States in substance although not in form, was comprehended under the head of trespass on the case, and embraces all causes of action for the recovery of damages for the breach of any simple contract, oral or written, or express or implied," as checks,' promissory notes,* payable either in mone}- or specific articles,' as bills of exchange,^ interest cou- pons upon municipal or other bonds,' an award not under seal,^ any acknowledgment of an indebtedness, certificates of deposit,' for work done under a special contract under seal, but not according to the cov- enant, ■"' or when the contract has been rescinded," on the promise of a grantor to refund the purchase-monej' for land on account of a failure of title, ^- to recover for goods sold and delivered,-'* for services rendered on express or implied request," for a breach of warranty, express or 1 Griffith's Annual Register, 680. ' Morse v. Allen, 44 N. H. 33 ; Carver 2 Carter v. Hope, 10 Barb. (N'. Y.) v. Hayes, 47 Me. 257. 180 ; Howes v. Austin, 35 111. 396. ' Swift v. Whitney, 20 111. 144 ; State ' Hinsdale v. Bank of Orange, 6 Wend. Bank v. Corwith, 6 Wis. 551. (N. Y.) 84 ; Hughes v. Wheeler, 8 Cow. i" Canby e. Ingersoll, 4 Blackf. (Ind.) (N. Y.) 77 ; Woods v. Schroeder, 4 H. & J. 493. (Md.) 276; Ellsworth i). Brewer, 11 Pick. " Bassett v. Sanborn, 9 Gush. (Jlass.) (Mass.) 320 ; Tenuv v. Sandborn, 5 N. H. 58; Hill v. Green, 4 Pick. (Mass.) 114. 557; Eagle Bank v. Smith, 6 Conn. " Miller «. Watson, 4 Wend. (N. Y.) 71. 267. * Pa3»ne w. Couch, 1 Greene"(Iowa), 64 ; i' Edmunds v. Wi^gin, 25 Me. 505; Stener v. Lamoure, H. & D. Supp. (N. Y.) Davis v. Sanders, 11 N. H. 259; Kingman 352 ; St. Louis, &o. Co. ». Souland, 8 Mo. v. Hotaling, 25 Wend. {N. Y.) 423. 665. '* James v. Buzzard, Hempst. (U. S. ^ FarmeiV, &o. Bank v. Payne, 25 C. C.) 240. In Watchman !•. Crook, 5 Conn. 444. G. & J. ( Md. ) 246, it was held that assump- • Johnson w. Stark, 24 111. 25. sit lies for work done nnder a contract T Brady v. Mayor, 1 Barb. (N. Y.) ' under seal, though not according to the 584 ; Bates v. Curtis, 21 Pick. (Mass.) terras of the contract, if the work is ac- 247, cepted; but in sucli a case the action is foi 58 STATUTES OP LIMITATION. [chap. n. implied/ for the breach of a contract of bailment,^ for a subscription to the stock of a corporation ; ^ so for a refusal of a corporation to issue to the owner of stock a certificate thereof, or to recognize his rights as owner thereof/ and for dividends due upon stock/ for a pecuniary legacy not made a charge upon lands ; " and it seems that it lies against a devisee of land charged with the payment of a legacy or annuity when the obligation to pay becomes complete ;' so, too, it lies for the purchase-money agreed to be paid for land,* for the recovery of money paid for the conveyance of land to which the grantor had no title or no power to convey,^ or under an agreement to convej' land, but which the payee refuses or is unable to convey ;" and generally for money paid upon a consideration that has failed, whether it was paid under a sim- ple contract or specialty,-'^ or for money paid under false and fraudu- the value of the services, and not upon tlie contract itself. ^ Evertsen v. Miles, 6 Johns. (N. Y.) 138 ; Kimball v. Cunningham, 4 Mass. 505; Byers v. Bostwick, 2 Tread w. (S. C.) Const. 75; Eew v. Barber, 3 Cow. (N. Y.) 272. 2 Bank of Mobile o. Huggins, 3 Ala. 206. 8 Eensselaer, &c., Plank Road Co. v. Barton, 16 jST. Y. 457, n.; Ogdeusburgh, &o. E. R. Co. ^. Frost, 21 Barb. (N. Y. ) 541; Dayton v. Borst, 31 IT. Y. 435; Bar- rington v. Pittsburgh, &o. E. E. Co., 34 Penn. St. 358. * "Wyman v. Am. Powder Co., 8 Gush. (Mass.) 168 ; Gray v. Portland Bank, 3 Mass. 364; Sargent v. Franklin Ins. Co., 8 Pick. (Mass.) 90. 5 Ellis 1,. Essex Memmack Bridge, 2 Pick. (Mass.) 243. 6 Woodruff V. Woodruff, 3 N. J. L. 552; Clark v. Herring, 5 Binn. (Penn.) 33 ; Goodwin v. Chaffee, 4 Conn. 163 ; Knapp 0. Hannaford, 6 id. 175 ; Cowell V. Oxford, 6 N. J. L. 432. 7 Swasey v. Little, 7 Pick. (Mass) 296; Adams v. Adams, 14 Allen (Mass.), 65; Sheldon v. Purple, 15 Pick. (Mass.) 528. " O'lSTeale v. Lodge, 3 H. & M. (Md. ) 433; Shephard v. Little, 14 Johns. (N.Y.) 210; Bowen v. Bell, 19 id. 338; Wood V. Gee, SMcCord (S. C), 421. Gallup V. Bernd, 132 N. Y. 370. In an action, commenced in 1887, to recover an alleged balance unpaid by the purchase price of a farm sold and conveyed in 1880, by the plaintiff, to the defendant, the defendant set up as a counter-claim, and the referee found in substance that the sale was by the acre, that the plaintiff represented that there were 230 acres in the farm, and relying thereon he agreed to pay for that number, that shortly be- fore the commencement of the action he discovered that there were only about 211 acres. The referee found that the agree- ment was the result of a mutual mistake. The defendant demanded a reformation of the contract and an allowance for the de- ficiency. Held, that he was entitled to the relief sought. The plaintiff in reply to the counter-claim pleaded the statute of limitations. Held, untenable ; that the contract having been executed, defendant had no relief, except in equity, and that the ten years limitation applied ; and that the correction of the mistake sought for could be made as well upon answer as in a suit brought directly for that purpose. • 3 Shearer v. Fowler, 7 Mass. 31; Claf- lin V. Godfrey, 21 Pick. (Mass.) 1. i» Parker v. Tainter, 123 Mass. 185 ; White V. Wieland, 109 id. 291; Williams V. Bemis, 108 id. 91 ; Dix v. Marcy, IIS id. 416. " Williams v. Eeed, 5 Pick. (Mass.) 482 : Lawrence v. Carter, 16 id. 12 ; Ar- thur u. Saunders, 9 Port. (Ala.) 626. Thus, money paid for insurance when the policy never attached, Hemmenway v. Bradford, 14 Mass. 121; or under a deed which the person executing had no au- thority to make, Claflin v. Godfrey, 21 Pick. (Mass.) 1 ; for freight or passage money when the voyage is broken up by a peril of the sea or otherwise, Chase v. Alliance Ins. Co., 9 Allen (Mass.), 311. § 21.] ASSUMPSIT FOR TOETS. 59 lent representations,* by mistake.' It lies to recover an account stated,^ and also to recover a final balance due from one partner to another growing out of a settlement of the business of the firm,* on a foreign judgment,^ for money accruing under a statute,^ by one co- tenant against another who has received more than his share of the profits from the common property,' and in all instances where book- account lies, when this remedy is given by statute.' In verj' manj' of the States there is a general provision in the stat- utes limiting the right to bring an action of any kind after the lapse of a certain period. That is, after making special provision for the bar- ring of certain classes of claims, there is a provision that all other actions shall be brought within a certain time. And where that pro- vision exists of course all classes of actions, except those which are specifically provided, in the statute, are embraced under this head, and no question can arise as to the applicabilitj- of the statute. But in the States where no such general provision exists, questions often arise as to whether certain classes of actions are embraced under any of the special heads covered by the statute. Thus, in Tennessee, it is held, that the statute does not apply to an action brought by ,a person in possession of land to set up a lost deed, the reason being that the suit is not for the recovery of land.* In Minnesota, it is held that the statute does not apply to proceed- ings to enforce the payment of taxes.''" And in Kentucky, it is held, that it has no application to proceedings brought to coerce an assessment of propertj- for taxation, the reason in the latter case being that no cause of action arises until the assess- ment is made. And it may be said generally, that the statute has no application where a contract is continuing, as to a contract for the sup- port of a person during life, the reason being that so long as the per- son lives the breaches of the contract will continue." Sec. 21. For Torts, Ass\unpsit lies, when. — Without stopping to multiply instances, it may be said that assumpsit lies for the breach of any simple contract, and in all cases where a contract or promise exists by express act of the parties, or where the circumstances are such that the law will imply a promise; and it may be said that 1 Dana v. KemUe, 17 Pick. (Mass.), 7 Brigham v. Eveleth, 9 Mass. 538 ; 545. Jones v. HaiTaden, id. 540, n. a Scott V. "Warner, 2 Lans. (S. Y.) 49; 8 Edwards v. Nichols, 3 Day (Conn.), Kingston Bank v. Ettinge, 40 N. Y. 391; 16. Renard v. Fiedler, 3 Duer (N. Y. Sup. C), ' Anderson v. Akard, 15 Lea (Tenn.), 31S. 182. s Hoyt V. Wilkinson, 10 Pick. (Mass.) i" Brown County v. TVynona, &c., Land 31; Duiibar v. Johnson, 108 Mass. 519. Co., 38 Minn. 397. * Welby I'. Phinney, 15 Mass. 116. " Eiddle ». Beatty (Iowa), 41 N. ^Y. 8 Buttrick v. Allen, 8 Mass. 273. 606. 6 Pawlet. V. Sandgate, 19 Vt. 621, un- less the statute provides another remedy. 60 STATUTES OF LIMITATION. [CHAP. II. under this head a recovery may be had for tortious acts, properly embraced under the head of actions ex delicto, in all those cases where from the circumstances of the case the law will imply a promise on the part of the wrong-doer to reimburse the party injured by his act. The party, under such circumstances, ma}- elect to waive the tort and sue in assumpsit. Especially is this the case where a person has wrongfully or unlawfully obtained the goods of another and sold them,* or converted them to his own use, so that they cannot be returned in statu qtio.^ Thus, where a person cut and carried away growing wood of another, and converted it so that it could not be returned in specie, it was held that the owner might waive the tort and sue upon an implied contract of sale ; ° and in all cases where the gist of the trans- action is a tort, if it arises out of a contract, the plaintiff may elect whether to declare in tort or in contract ; * and this covers that class of actions arising from deceit,^ fraud,' or a breach of warranty in the sale of property.' In a case where a tort may be waived and assumpsit brought therefor, the latter action will lie even though an action for the tort is barred by the statute.* This was well illustrated in the case last cited, in which it was held that if a tenant for life has rendered accounts for the remainder-man of timber cut by him during a period of more than six years before a bill in equity for an account of such timber, and for the value of it, the statute cannot be pleaded to the bill ; and the reason assigned was, that although if the remainder-man had brought trover the tenant might, notwithstanding the rendering of the accounts, have pleaded the statute, j-et he could not have done so if the remainder- man had brought assumpsit. Sir John Leach, V. C, in passing upon this question, said: "It is clear from the authorities that the plaintiff might have elected to bring an action of assumpsit, and not trover, for the money had and received bj' the defendant from the sale of 1 Bank of North America v. M'Call, * Vassew. Smith, 6Cranch (U. S.), 226; 4 Binn. (Penti.) 374; Willet v. Willet, Stoyle v. Westcott, 2 Day (Conn.), 422; 3 Watts (Penn.), 377; Stockett v. Wat- Blalock ». Phillips, 38 Ga. 216. kins, 2 G. & J. (Md.) 326; Sanders v. ' Pearsall v. Chapin, 44 Penn. St. 9; Hamilton, 3Dana(Ky.), 552; Morrisonc. Gray ». Griffith, 10 Watts (Penn.), 431. Rogers, 3 111. 817; Sturtevant v. Water- " Ascutney Bank v. McOrmshv, 28 Vt. bury, 2 Hall (N. Y. Sup. Ct.), 449 ; Har- 721; Leach v. Leach, 58 N. Y. 630. pending v. Shoemaker, 37 Barb. (N. Y.) ' Camp v. Pulver, 5 Barb. (N. Y.) 41 ; 270; Berly v. Taylor, 5 Hill (N. Y.), 577. Roth o. Palmer, 27 id. 652 ; Evertsen v. 2 Goodenow v. Snyder, 3 Iowa, 599; Miles, 6 Johns. (N. Y.) 138 ; Rew v. Bar- Jones V. Buzzard, Hempst. (U. S. C. C.) ber, 3 Cow. (N. Y.) 272. But where as- 240; Fratt w. Clark, 12 Cat. 89; Mc- sumpsit is brought for a breach of warranty, Cullough V. McCullough, 14 Penn. St. 295; the plaintiff must declare specially on the Dundas v. Muhlenberg, 35 id. 351; All- contract, as it is the breach of that which brook V. Hathaway, 3 Sneed (Tenn.), 454; constitutes the gist of the action. Russell Chambers v. Lewis, 2 Hilt. (N. Y. C. P.) v. Gilmore, 54 111. 147. 591; Tankersley v. Childers, 23 Ala. 781; * Honey v. Honey, 1 Sim. & Stu, Patterson v. Prior, 38 Ga. 216. 560. 8 Halleck v. Mixer, 16 Cal. 574. § 21.] ASSUMPSIT FOR TOETS. ' 61 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 limitations." In a Massachusetts case,^ the defendant obtained pos- session of certain 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 action brought ; and it was held that he was liable in assumpsit for the sums received within the six 3-ears, and that he was estopped to say that the notes were obtained by fraud, and so an action of trover therefor would have been barred by the statute, upon the ground that a wrong-doer cannot allege his own wrong for the purpose of antedating the injurj', so as to let in the statute ; and that where the injured party has a right to either of two remedies, the one he chooses is not barred by limitation because the other is. The latter rule is illustrated in the case of a note secured by mortgage upon lands. Although the note may be barred by the statute in six j'ears, yet the mortgage being a specfalty is not barred, and the mortgagee maj- pursue his remedy upon the mortgage at any time before the statute has run upon it, and recover the lands or the full amount of his mortgage debt. The rule mky be said to be that, although statutes of limitation are equally applicable in actions at law or proceedings in equitj', yet, where there are two securities for the same debt, one of which is barred and the other not, the creditor, not- withstanding he has lost his remedy- at law on the former, may pursue it in equity on the latter.'' And the same rule prevails where a person is given certain personal property to hold as collateral security for the payment of a note or other obligation. The statute runs upon 1 Lamb v. Clark, 5 Pick. (Mass.) 193 ; Gleason, 11 Conn. 160 ; Miller v. Trastees JonfiS V. Hoar, id. iSo ; Willett v. Willett, of Jefferson College, 14 Miss. 651 ; Trotter 8 Watts (Penn.), 277; Ivory k. Owens, 28 ». Erwin, 27 id. 772; Nevitt v. Bacon, Ala. 641 ; Martin v. Brooklyn, 1 Hill 32 id. 212 ; Joy v. Adams, 26 Me. 330 ; (N. Y.), 545. "Wiswell v. Baxter, 20 Wis. 713 ; Cookesi). 2 Thayer ». Mann, 19 Pick. (Mass.) 535; Culbertson, 9 Nev. 199 ; 3 Pars, on Cont. Ayres v. Wait, 10 Cash. (Mass.) 72 ; Han- 99, 100 ; Smith's Executrix ». Washington Ion V. Hannon, 123 Mass. 441. In the City, Virginia Midland, & Great Southern case of a claim secured by a mortgage, al- Eailroad Co., 33 Gratt (Va.) 84. In New though the remedy by an action at law for Hampshire the statute expressly provides the claim may be barred by the statute of that actions upon notes secured by mort- limitations, the remedy under the mortgage gage may be brought so long as an action will not be affected by any lapse of time upon the mortgage itself may be brought, short of the period sufSeient to raise the See Appendix, New Hampshire. Harris presumption of paj-ment. Hanna v. Wil- v. Mills, 10 N. II. 429. In Illinois, it is son, 3 Gratt (Va.) 242 ; Coles v. AVithers, held that, if the mortgage contains no 83 id. 186 ; Elkins v. Edwards, 8 Ga. 325; covenant for the payment of money, the Thayer v. Mann, 19 Pick. 535 ; Pratt o. statute runs upon the right to foreclose Hnggins, 29 Barb. (N. Y.) 277; Borst it whenever the note which it is given to V. Corey, 15 N. Y. 505 ; Belknap v. secure is barred. 62 STATUTES OP LIMITATION. [chap. II. the debt, but this does not defeat the creditor's lien upon the property given as collateral.^ The statute simply bars the remedy, it does not extinguish the debt ; consequenth', where a lien is given upon prop- erty for the payment of a claim, whether by contract or by the custom and usage of trade, the lien may be enforced, although the remedy upon the debt itself is barred.'' Thus, in the case last cited, the de- 1 Slaymaker v. Wilson, 1 P. & W. (Peon. ) 216. In Higgins v. Scott, 2 B. & Ad. 413, an attorney bad a lien upon a judgment for a debt whioli was barred by the statute, and it was contended that in consequence his lien was lost; but the court held that the statute of limitations only barred the remedy and did not destroy the debt, so that the attorney had a right to be paid from the sale of the goods upon an execution issuing on the judgment, fol- lowing out the principle upon which Spears v. Hartley, 3 Esp. 81, was predi- cated, that, although the statute has run upon the demand, yet if a creditor obtains possession of goods upon which he has a, lien for a general balance he may hold them for that demand by virtue of his lien. " Spears v. Hartley, 3 Esp. 81. All liens which are created by a deposit of per- sonal property by one person In the hands of another, under an express or implied stipulation that the latter shall be entitled to retain it for his security until some debt due to him from the former is discharged, are in the nature of pawns or pledges, whether the deposit was made for the ex- ecution of some purpose on the goods in the course of trade or for bare custody. But the term " pawn," as generally under- stood, applies only where goods are de- posited for the latter purpose ; but in this connection we ijse the term as applicable to both purposes. The distinction between a pawn and a mortgage is of great importance, and is well given by Loed Haedwickb in Ryall V. Rowles, 1 Atk. 167, the sub- stance of which is, that a mortgage is a conditional sale, by which the general legal property in the thing mortgaged is con- veyed to the mortgagee, subject to the mortgagor's pow6r of redemption. But by a pawn the pawnee acquires only a special property in the thing pawned, with the right to detain it for his security until it is redeemed, the general property still re- maining in the pawnor. At law, although not in equity, a mortgage operates as a transfer of the prop- erty, and therefore no lien can exist, for a right of lien necessarily supposes a right of property in another ; and it would be a contradiction of terms, and absurd, to say that a man had a lieii upon his own prop- erty. BaLLEE, J., in Lickbarrow v. Mason, 6 East, 25, n. In the case of pawns, a lien is created by the transaction itself, and may be claimed to any extent to which the agreement by which the pledge is effected declares it shall extend, whether it be for money pre- viously lent, or at the time of deposit, or to be thereafter advanced. Thus, the accep- tor of a bill of exchange may retain money and effects of the drawer in his hands to discharge it, either until the bill is deliv- ered up to him or until he receives a bond of indemnity against being sued upon it. Hammond v. Barclay, 2 East, 227, Mad- den V. Kempster, 1 Camp. 12. But qucere, whether if the drawer, payee, and acceptor of a bill became bankrupts after the biu is negotiated, and the payee is in possession of property of the drawer, who, in the event of the bill being proved against the estate ot the payee, will be indebted to the payee, the assignee of the bankrupts under the com- mission against the estate of the payee will have any lien arising from the possibility of such debt. Walker v. Birch, 6 T. E. 208. It often becomes a question how far a subject which is pledged for a debt al- ready due can be considered as a security for further loans where there is no agree- ment to that effect, and it may be said that questions of this character must be deter, mined largely by the circumstances of each case. If it can be presumed from theso §21.J ASSUMPSIT FOE TOETS. 63 fendant, a wharfinger, claimed a lien upon a log of mahogany for ■wharfage and a general balance on account. The balance claimed that the ground and inducement upon which the pawnee advanced the further loans was his having a pledge in his hands, a court of equity will not suffer the pledge to be redeemed without payment of all the advances. Ex parte Ookenden, 1 Atk. 236. Thus, where a testator had borrowed a sum of money upon a pawn of jewels, and after- wards borrowed three other several sums of the pawnee, for each of which he gave his note, without taking any notice of the jewels, it was held that his executors could not redeem the jewels without first paying the money due upon the notes, because it was presumed, from the money being lent subsequent to the deposit of the pledge, that the pawnee lent the money on the credit of the pledge. Dermainbray v. Met- calf, 2 Vern. 291. But it must not be understood that there is any general a-ule, either at law or in equity, that where a person holds security for a loan already made, advances a further loan to the same person, he invariably is entitled to hold such security until both loans are repaid ; because, if there is anything in the circum- stances attending the transaction, or sub- sequently, that tends to rebut the pre- sumption that the last loan was made on the faith of the security, he can only re- tain it for the payment of the first loan. Ex parte Ockenden, ante. Thus, where personal securities were pledged to secure a specific debt, and afterwards a mortgage was made by the pawnor to the pawnee of certain lands, and no mention was made of the debt for which the personal securities were pledged, and afterwards the same se- curities, together with others, were pledged to the pawnee for the balance of an account due to him from the pawnor, no notice being taken of the mortgage, redemption of the personal securities was decreed without compelling the discharge of what was due on the mortgage, because there appeared to have been no intention of tacking the secu- rities to the mortgage at the time the latter was made, and because, if such an intention did exist, it was waived by the subsequent pledge of the securities without noticing the mortgage, and the transactions were entirely distinct. Jones v. Smith, 2 Ves. Jr. 372. The decree in this case was re- versed in the House of Lords (6 id. 229, note d), but not upon any ground im- pugning the doctrine stated. See also Vanderzee v. "Willis, 3 Bro. C. C. 21 ; Adams v. Clayton, 6 Ves. Jr. 226. It may be said, in drawing this rather desultory note to a close, that at the com- mon law a lien cannot be acquired in either of the following cases : — 1st. Where the deposit is made after an open act of bankruptcy by the pawnor, or with the intent to give the pawnee a fraud- ulent preference over other creditors in the event of his bankruptcy. Tamplin v. Dig- gins, 2 Camp. 312 ; Wilson u. Balfour, id. 579. 2d. Where the goods were pawned with- out the authority of the owner, even though the pawnee was ignorant of the fact. Mars- den V. Punshall, 1 Vern. 407 ; Maans v. Henderson, 1 East, 337 ; De Bauchant v. Goldsmid, 5 Ves. Jr. 211 ; Daubigny v. Du- val, 5 T. E. 604 ; Strode v. Blackburn, 3 Ves. Jr. 222. This rule, of course, does not apply to such property or securities as are placed upon the same footing as money, — • as bank- notes, notes payable to bearer, bills of ex- change duly indorsed, and such other secu- rities, the legal interest in which by the law merchant passes upon delivery, and which, if passed to a bona fide holder for value, cannot be recovered by the original owner. Miller v. Race, 1 Burr. 432 ; Glyn V. Baker, 1 3 East, 509 ; Grant v. Vaughan, 3 Burr. 1516 ; King v. Milsam, 2 Camp. 5 ; Lowndes v. Anderson, 13 East, 130 ; Solo- mon V. Bank of England, id. 135, n. ; Peacock v. Rhodes, Davy, 682 ; Hill v. Simpson, 7 Ves. Jr. 152 ; Taylor v. Haw- kins, 8 id. 209 ; Newson v. Thornton, 6 East, 17 ; Murlead v. Drummond, 17 Ves. Jr. 152 ; McCombe v. Davies, 6 East, 538 ; Paterson t>. Tnah, 2 Strange, 1178 ; Hoare V. Har.stopp, 3 Atk. 44 ; Horwood v. Smith, 2 T. E. 750; Viner's Abr. tit. Pawn (E). It has been held, however, 64 STATUTES OP LIMITATION. [CHAP. H. was barred by the statute of limitations, and for that reason the plain- tiff insisted that the defendant, could not justify under the lien. But the court held otherwise, Lord Eldon saying : " If what is claimed by the defendant's counsel as law, that the debt is discharged by the operation of the statute of limitations, no lien could be obtained by reason of it. But the debt was not discharged ; it was the remedy only. I am of the opinion that, though the statute of limitations has run against a demand, if the creditor obtains possession of goods on which be has "a lien for a general balance, he ma}' hold them for that demand b}' virtue of the lien. In this case the defendant had a sub- sisting demand when the goods came to his possession, and I am of opinion he may enforce it by the lien which the law has given him for his general balance." ^ In the case last cited this doctrine was extended to an attorney's lien upon a judgment, although his debt was barred by the statute. In that the attorney for the plaintiff had ob- tained judgment, and the defendant was afterwards discharged under the Lord's Act. But at a subsequent period a. fieri facias issued against his goods, upon which the sheriff levied the damages and costs, and it was held that the attornej', although he had taken no step in the cause, or to recover his bill and costs within six years, still had a lien on the judgment therefor, and the court directed the sheriff to pay him the amount out of the proceeds of the goods.^ In Virginia it has been held that the statute does not run against the lien of a grantor for the pur- chase-money of land, although the debt itself is barred, where, at the time of sale, he gave a bond conditioned for the execution of a deed bj' him when the purchase-money should be paid ; ^ and the same rule also prevails where a lien is given by statute for a simple-contract debt. Thus, where the statute gives to a municipal corporation a lien upon land opposite to which certain improvements are made, *the statute does not run upon the lien, nor is it lost until the lapse of such a period that thfe law will raise a presumption that the claim has been satisfied.* It was intimated in an early New York case ^ that a mortgage to that where goods obtained hy false pre- operation of law a lien exists, this rule tences were pawned without notice of the applies. Kerrison v. Williams, 3 Camp. fraud to the pawnee, that he acquired a 418 ; Hopkins v. CockereU, 2 Gratt. (Va.) lien thereon, so that he could maintain 88. trover therefor against the owner who took ' Hopkins v. Cockerel!, 2 Gratt. (Va. ) them out of the pawnee's possession. Par- 88. ker V. Patrick, 5 T. E. 175. * * Connect v. Moyamensing, 2 Penn. St. 1 See also Higgins v. Scott, 2 B. & Ad. 224. 413. 6 Jackson v. Sackett, 7 Wend. (N. Y.) ^ 2 In all cases where by contract or by 74, ,. § 21.] ASSUMPSIT. 65 secure a simple-contract debt was presumed to have been paid witliin six years from the time when it became due, and in that event that the security was released from the lien. But this doctrine does not pre- vail, except when the statute provides that the lapse of the statutory period shall raise such presumption ; and in that case, of course, the lien would be destroyed unless the presumption is overcome by some of the modes provided by the statute. Thus in New York, by statute, ^ it is provided that, after the expiration of twenty years after a right. of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment ; but such presumption may be _ repelled by proof of payment of some part, or by proof of a written aqknowledgment of such right of action within that period ; and this provision is also ex- tended to domestic and foreign judgments, and as to these debts,, but no others, this presumption is made conclusive. In North Caro- lina,'' after the lapse of ten years after a right of action accrues, the ■ presumption of payment is raised against all judgments, contracts, or agreements, " under the same rules, regulations, and restrictions as. now exist at law in such cases ; " and in the case of mortgages the period is fixed at thirteen j'ears. " Under this statute, so far as liens are concerned, as, at common law, the presumption of payment arising from the lapse of time may be rebutted, it would seem that the pre- sumption raised by the statute might also be. In Wisconsin,' every judgment and decree in any court of record of the United States, or of any State or Territory thereof, is deemed to be paid and satisfied at the expiration of twenty years after the judgment or decree was ren- dered ; and in Missouri * a similar provision exists as to judgments audi decrees, with the exception, however, that such presumption may be- repelled by proof of payment, or written acknowledgment of indebted- ness made within twenty years of some part of the amount recovered. 1 Appendix, New York. diction of the court. The defendant then In Bean v. Tonnele, 94 N. Y. 381, it was offered to show that the plaintiff was in held that where an action was brought indigent circumstances during this period ; against the maker, upon a promissory note this was objected to and excluded. This more than twenty years after the same fell was held en'oneous, and that the evidence due, the statute of limitations was not a was proper as tending to fortify the pre- bar because of non-residence of the de- sumption of payment or satisfaction ; and fendant, yet that the lapse of time raised that the error was not cured, or the ohjec- a presumption of payment. tion waived, by the rejection, upon the de- It appeared that the defendant executed fendant's objection, of evidence offered by the note for the accommodation of the the plaintiff, tending to explain the delay payee, who indorsed the same to the in bringing suit. plaintiff ; that said payee was dead, but * Appendix, Korth Carolina, that for a period 'of seventeen years after " Appendix, "Wisconsin, the note fell due. he was within the juris-^ ^ Appendix, Missouri. VOL. I. — 5 QQ STATUTES OF LIMITATION. [CHAP.'Il. by such judgment or decree, and that in all other cases it shall be con- clusive, and the same provision is extended to all sealed instruments for the payment of money ; and substantially the same provision exists in Arkansas,^ except that in the latter State the presumption is ex- tended to any instrument for the payment of money or delivery of property after the lapse of ten years from the time when a right of action accrues thereon, and which is made conclusive, except in the instance named in the Missouri statute. In these States the rule wouW doubtless be, as to the class of securities named in the several stat- utes, that the lien was extinguished by the lapse of the statutory period ; but the statute only applies to the class of claims named. Sec. 22. Lapse of Statutory Period does not give Title to Pledgee of Property, except. — If a stipulated time is agreed upon for the pay- ment of a debt secured by a pledge, the fact that the debt is not paid at the time does not pass the absolute title to the property to the pawnee. He may, after that time, sell the pledge if he chooses so to do, and after reimbursing himself pay the balance, if any, received therefor over to the pledgor ; ^ but if, instead of selling the pledge, he retains it in his possession, he continues to hold it as a pledge, and the pledgor may redeem it at any time, as neither prescription nor the statute of limi- tations run against it.' And if no time is fixed for its redemption, the .pawnor has his whole lifetime in which to redeem, unless the pawnee CLuickens him through a bill in equity, or by notice in pais.* And this 1 Appendix, Arkansas. R. R. Co., 6 Allen (Mass.), 642; unless the 2 Story on Bailments, 235 ; Glanville, statute confers sueli right. book 10, c. 6. "Where there is no agreement ' Kemp v. Westbrook, 1 Ves. 278; Slay- that the pawnee shall sell, he cannot be maker v. "Wilson, 1 P. & "W. (Penn.) 216; •compelled to do so. Badlam v. Tucker, White Mountain E. R. Co. v. Bay State 1 Pick. (Mass.) 389. But if he chooses Iron Co., 50 N. H. 57. In "Weeks -n. to do so, he may sell without judicial pro- "Weeks, 5 Ired. (N. C.) Eq. Ill, it was •cess, upon giving reasonable notice to the held that a person who had received slaves pledgor. Parker v. Braucker, 22 Pick, from his father as a parol gift or loan (Mass.) 46. The sale, unless otherwise could not avail himself of the statute of agreed, must be at public auction, with limitations to protect his title thereto; but notice to the pledgor of the time and place in a Missouri case. Cook v. Clippard, 12 of sale. "Washburn v. Pond, 2 Allen Mo. 379, where a slave was loaned and (Mass.), 474. But see Worthiugton v. held five years without the owner ever Tormey, 34 Md. 182, where it was held having demanded the same, a purchaser that notice of the place of sale need not from the bailee who knew the facts was be given. As to the pawnee's duty to pay held to have acquired a good title thereto, the surplus over to the pawnor, although * Kent, J., in Cortelyou v. Lansing, the statute ha,s run on the debt it was 2 Cai. (N. Y.) 200; Gulick v. James, 12 given to secure, see Hancock v. Franklin Johns. (N. Y.) 146 ; Hart v. Ten Eyck, Ins. Co., 114 Mass. 153. But it must be 2 Johns. Ch. (N. Y.) 62. Where the pledge understood that a right to sell only exists is secured by a mortgage, the pledgor when the lien is created by contract. A may redeem, after foreclosure even, if the lien that is raised by usage or the law con- pledgor still retains the property. White fers no such right, Doane v. Russell, 3 Mountain R. E. Co. v. Bay State Iron Co.. Gray (JIass.), 382 ; Briggs v. Boston, &c. 5 N. H. 57. §22.] ASSUMPSIT. 67 is so even though the pawnee dies, and a tender made to his executor IS good, and revests the title to the property in the pawnor.^ In the 1 Eatcliff V. Davis, Yelv. 178. In Cor- telyou V. Lansing, ante, the subject is fully discussed. An abstract of the opinion of Kent, J., in that case, is of so much value upon this question, that, although not strictly germane to our topic, it will be found of great value in questions of this character. " There is a difference," says he, "be- tween a mortgage of goods and a pledge or pawn. A mortgage is an absolute pledge, to become an absolute interest if not re- deemed at a fixed time; and is, in certain cases, valid without delivery. The legal property passes, with a condition of a de- feasance. A pledge or pawn of goods is a deposit of them as a security; and delivery is essential. The general property does not pass, as it does in case of a mortgage, but remains in the pawnor. Dig. lib. 13, tit. 7, 9 ; 1 Hub. 291, § 15; Bractou, 99 b ■ Bro. Abr. Pledges, 20; Pow. on Mortg. 3; Jones V. Smith, 2 Ves. Jr. 378. The mort- gage and the pledge or pawn of goods have, however, generally been confounded. " Glanville observes, lib. 10, c. 6, that a loan is sometimes made on the credit of a putting in pledge, and the pledge may consist of chattels, lands, or rents. Some- times possession is immediately given of the pledge on receipt of the loan, and sometimes it is not. Sometimes the thing is pledged for a certain period, and some- , times indefinitely. When a thing is pledged for a definite period, it is either agreed that if, at the time appointed, the debtor shall not redeem his pledge, it shall then belong to the creditor, so that he may dispose of it as his own ; or no such agreement is made.' In the former case, the agreement must be adhered to; in the latter, the term having expired without the debtor's discharging the debt, the creditor may complain of him, and the debtor shall be compelled to appear and answer in court, by a writ (the form of which is given in c. 7), thus, ' Command N. that justly and without delay he re-, deem such a thing, which he has pledged ^ to E. for a. hundred marks, for a term which is past, as he says, and of which he complains that he has not redeemed it; and unless ho does so,' &c. In c. 8 he says, if the debtor confess in court that he pledged the thing in question for the debt, he shall be commanded at a reasonable period to redeem his pledge; and unless he comply, liberty shall be given to the cred- itor from that time to treat the pledge as his own property, and do whatever he chooses with it. If a thing be pledged indefinitely, and without any period being fixed, the creditor may, at any time he chooses, demand the debt. The debt being discharged by the person owing it, the creditor is bound to restore to him the thing pledged without any deterioration. See Beames's translation of Glanville, 252 to 257, 1 Reeves Hist. 161, 163! This authority establishes two points : 1st, that if the pledge was not redeemed by the time stipulated, it did not then become absolute property in the hands of the pawneee, but be was obliged to have re- course to the aula regis, and to sue out an original writ in order to obtain authority to dispose of the pledge ; 2d, that if the pledge was for an indefinite term, the cred- itor might at any time call upon the debtor to redeem, by the same process of demand. By what authority the judges in the time of James I. advanced a different doctrine on the subject is not made to appear. "In Ratcliff i;. Davis, ante, it is said that if no time is limited for redemption the pawnor has time to redeem it during his life ; but if he die without redeeming, the ~ right is gone, and his representatives can- not redeem. In Bulstrode's report of the case the only reason stated is, that it would be mischievous to compel the pawnee to keep the goods thus pawned for such an indefinite time when he has paid sufii- ciently for them. This objection would have been found to have no validity if the judges had attended to the law as laid down by Glanville, who says, the creditor may quicken his debtor's delay, and de- mand his debt at any time, by a process which he has stated. In Noy's report, as well as in the text, the reason stated is, that the pledge is a condition personal, and extends only to the person of him who pawned it. This ground of the opinion is G8 STATUTES OP LIMITATION. [CHAP. II. case last cited from Telverton, the plaintiff pawned a diamond hat-band to one Whitlock fox a loan of £25, no time being agreed upon for re- equally unsound. A pledge is not a prop- erty created upon a condition of defeasance like a mortgage. It has no analogy to the case of a right which is absolute, to vest or to be defeated on the happening of an event; nor is it susceptible of that strict construction, unless it be so modified by the express agreement of the parties. Least of all is it a condition personal, to be perfonned exclusively by the pawnor. There is nothing of this in the nature of the contract; and in most cases, as when the time of payment is mentioned, it is agreed that the right may remain perfect iu the representatives of the parties. " In feoffments of land, upon condition that the feoffee do an act, and no time be limited, there he has only his; lifetime; but if his heirs be mentioned, the condi.-, tion is not broken by his death, but ex- tends to his heirs indefinitely without limitation of time, and cannot be broken except upon request made by the feoffor or his heirs. Lord Cromwell's Case, 2 Co. 79; Duke of Norfolk's Case, Dyer, 139 a. If the naming of the heirs would, in this case, do away the limitation of this condi- tion to the person of the feoffor, even ac- cording to the rigid construction which used to prevail under the genius of the feodal law over feoflfments upon condition, surely it cannot be material that in per- sonal contracts executors should be named; for it ig a general and well-established principle that they are affected equally as if named. "This notion of a pledge, resting on the perfoi-mance of a condition to revest the light, as in the case of a mortgage, prob- 'ably led to the decision in Capper v. Dick-, inson, 1 Eol. Rep. 315, that if goods pawned fbr a limited time are not re- deemed at the day, they are forfeited, and may be sold at the will of the pawnee. This doctrine is also laid down in the Office of Executors. But this is contrary to the contract of pledge, is repugnant to the ancient law, and ig contradicted by Baeon Comyns, who ig of himself a great authority. Com. Dig. Mortgage by Pledge of Goods, B. It is also contrary to the civil law, and to the law pf; Frajice, Hol- land, and Scotland. 3 Hub. 1072, § 6; 1 Domat, 362, §§ 9, 10; 2 Ersk. 455. " An extra-judicial dictum of Lord C. J. Teeby, 1 Ld. Raym. 434, and another of LoKD Haedwioke, 1 Ves. 278, and both supported only by Katcliff v. Davis, ante, which go to show that the pawn is not redeemable after the pawnee's death, are- the only remaining authorities on which the proposition has rested." In Tucker v. WUson, 1 P. "W. 261, and, Lockwood 1). Ewer, 2 Atk. 303, and Kemp u-Westbrook, 1 Ves. 278, it was said that a pawnee of stock- was not bound to bring a bill of foreclosure, and might sell with^ out it. But in the first two oases the stock had been, in the first instance, abso- lutely transferred to the mortgagee, with a defeasajioe thereto that the assignment should, be void or the stock retransferred on payment at the day. They were cases, therefore, not of a pledge, but of a mortgage, of goods ; and though it is nowhere stated, in what manner the mortgagee is to sell, yet in the first of these cases there was a previous notice to the opposite party ac- cording to the rule of the civil law, and the giving of this notice was asserted to be the constant practice. The last case was strictly a pledge of chattels to secure a loan without a specified time of payment;- and the assignee of the pawnor, who had, become a bankrupt, was allowed to rediem. Demandray v. Metcalfe, Free. Ch. 420; % Vern. 691, 698 ; Gilb. Eq. Rep. 104 ; 1 Eq., Gas. Abr. 324, s. c. ; and Vanderzee V. Willis, 3 Bro. C. C. 21, are cases, of pledge, and perfectly in point. In the one case there was a pawn of jewels, and in the other of bonds and securities. In both cages the fame of payment had elapsed in the lifetime of the pawnor ; but the exec- utors, on a bill to redeem on payment of the debt and interest, obtained a decree accordingly^ It is said, indeed, in the first case, that the executors could not have back the jewels without the assist-, ance of chancery. If by this was meant, the identical chattel pawned, it was jier- haps correct; but if the observation meant, that, executors had no renjedy but in e.qjiity, it must, be a mistake; for a court §22.] Assumpsit. 69 demption. Whitlock's wife, with lier husband's assent, delivered the hat- band to the defendant. Whitlock died, and after his death tlie plaintiff tendered the £25 to his wife, who was executrix, who refused to receive it, and also demanded the hat-band of the defendant, who refused to deliver it to him. In trover therefor the court held that the tender was well made to the pawnee's execiitrix, and that a recovery might be had of the defendant, for the reason that, where no time for redemption is agreed upon, the pawnor has his whole lifetime in which to redeem. While, as stated, the statute of limitations does not give the pawnee the absolute property in the pledge during the life of the pawnor, so long as it is unsold and he retains it in his possession, yet after a long lapse of time, if no claim for redemption is made, the right will be deemed to be extinguished, and a court of equity will decline to entertain a bill for its redemption.' Sec. 23. Clauses in the Several Statutes that cover Simple Con- tracts. — In this country, in most of the States, the action of assumpsit of law has complete jurisdiction over tlie subject, and is equally competent to grant relief where the right of property is not extinguished. It would he unreasonable to turn the plaintiff round to another forum when there are no technical difficul- ties to impede, nor any defect of authority to give him redress at law by restoring to him, if not the specific thing, yet its equivalent. If a court of law will peimit one party to demand his debt after the time, it will equally permit the other party to tender and redeem. In the South Sea Company v. Duncomb, 2 Stra. 919, it was decided that where the pawnor of stock did not pay at the day stipulated, the paw- nee had his election to sue for tlie debt, or to stand to his remedy against the pawn. The court did not state the remedy ; but still there was to be a remedy under the sanction of law ; and the only remedies hitherto suggested in the books are the process by writ as stated in Glanville — the bill of foreclosure, as hinted in other cases — and the sale by the pawnee, after notice, in cases of the transfer of stock, as seems to have been the practice. From this review of the cases it follows that whatever right to redeem exists in the pawnor at his death, that right descends entire and unimpaired to his representa- tive. The expression in the text, that the pawnee has his life as a time to redeem when no time of redemption is fixed, must be taken with this qualification, that the pawnee does not, in the mean time, call *pon him to redeem^ A sale without such call and notice was, in the case of Cor- telyou V. Lansing, ante, held to he a con- version. A similar decision has been made in Pennsylvania. De Lisle v. Priest- man, 1 Browne (Penn.), 176. Except in cases of special agreement, the Eonian law never allowed a, pledge to be sold by the creditor, but upon notice to the debtor, and the allowance of a year's redemption. 1 Hub. 157, §§ 2, 3 ; id. 172, § 6 ; Pere- zius on the Code, vol. ii. tit. 34, §§ 4, 5. And as this was not sufficiently observed, Justinian regulated the method of fore- closure by a particular ordinance, by which two years' notice, or two years after a judi- cial sentence, was allowed to the debtor. The creditor may sue for his debt and pro- ceed in the same manner as he might if no pledge had been given ; but on payment of the debt he must restore the pledge. Glanville, lib. 10, c. 6, 12 ; Anon., 12 Mod. 564 : Vin. Abr. tit. Pawns. A contrary doctrine was held in Ceverly v. Brackett, 8 Mass. 450. But the doctrine of that case has been overruled and the doctrine last stated adopted. Taylor v. Cheever, 6 Gray (Mass. ), 146 ; Cornwall v. Gould, 4 Pick. (Mas.?.) 444; Beckwith v. Sibley, 11 id. 482 ; Whitwell v. Brigham, 19 id. 117. 1 Story on Bailments, 235 ; Powell on Mortgages. Coyngham's App., 57 Penn. St. 498 ; Davis v. I'rink, 40 id. 493 ; Sit- gi-eaves v. Bank, 49 id. 359 ; Dillon v. Brubaka, 57 id. 498. 70 STATUTES OF LIMITATION. [CHAP. II. is expresslj- brought within the statute, while in others the matter is loft to inference, as in the statute of James. Thus, in- Maine, the clause covering this class of actions is " all actions of assumpsit or upon the case, founded upon any contract or liability, expressed or implied ; " ' in Vermont, " all actions of account, assumpsit, or on the case, founded upon any contract or liability, expressed or implied ; " ^ in New Hampshire,^ " all other personal actions shall be brought within sis years after the cause of action accrued, and not after." This covers all personal actions except actions for words, assault, battery, wounding, or imprisonment, which must be brought within two years. In Massachusetts,^ "actions of contract founded," &c. In Connec- ticut,= " no action of account, book debt, debt on simple con- tract, or of assumpsit, founded upon implied contract, or upon any contract in writing not under seal, except promissory notes not nego- tiable, shall be brought but within six years next after tlie right of action shall accrue." In Ehode Island ' the statute is substantially the same as 21 James I. In New York,' "an action upon a contract, obligation, or liability, express or implied, except a judgment or sealed instrument," is barred in six years, while an action upon a sealed instrument is only barred in twenty years. The action of assumpsit, as a distinctive action, does not exist under the code, but the rules appli- cable thereto apply to actions upon the class of contracts for which the action formerly lay. In New Jersey,^ the statute relating to this mat- ter is the same in substance as the statute 21 James I. c. 16, § 3 ; and such also is the case in Pennsylvania.' In Delaware, "no action of debt not founded upon a record or specialty, no action of account, no action of assumpsit, and no action upon the case whatever, shall be brought after the expiration of three years from the accruing of the cause of such action."'" In Marj'land," "all actions of account, as- sumpsit, or upon the case," are required to be brought within three j'ears after the cause of such action arose. In Virginia,^'' provision is made for actions upon contracts, written or unwritten, and they are barred in five years, except where the action is for goods charged in any store account, in which case the statute runs in two years. In North Carolina, '' actions upon contracts are barred in three years ; and this embraces actions of assumpsit, as do all the statutes which make provision for the limitation of action's upon contracts, without specifj'- ing the particular form of action, as the word " assumpsit " includes all actions upon promises, express or implied, and the word "contract," 1 Appendix, Maine. 8 Appendix, New Jersey. 2 Appendix, Vermont. 9 Appendix, Pennsylvania. ' Appendix, New Hampshire. w Appendix, Delaware. ' Appendix, Massachusetts. u Appendix, Maryland. ^ Appendix, Connecticut. 12 Appendix, Virginia. 6 xVppendix, Rhode Island. W Appendix, North Carolina. ' Appendix, New York. § 23.] ASSUMPSIT. 71 as used in the statutes, embraces the action of assumpsit. In South Carolina in six years ; ' and in Georgia," all simple contracts are barred in six years. In Alabama,^ Mississippi,'' Tennessee,^ and Kentucky/ actions upon contracts are provided for. In Ohio,' " actions upon the case, covenant, and debt founded upon a specialty, or any agree- ment, contract, or promise in writing, are barred in fifteen years ; " and actions upon contracts not in writing, express or implied, within six years. And in the latter State the words " action upon the case " have been' held to include assumpsit in all its forms y^ but the language of the statute is now broad enough, so that it can be said to expressly include this form of action. In Indiana,' the statute expressly applies to contracts in writing, and unwritten contracts, fixing different periods of limitation for each. Such also is the case in Illinois.^" In Michi- gan," this portion of the statute is the same as in Maine. In Wis- consin,^^ " an action upon any . . . contract for the payment of money," also " upon any other contract, express or implied," must be brought in six years ; and, except that a distinction is made between contracts in writing and those not in writing, such is practically the provision in Missouri "and in Arkansas." In Florida,'^ " an action upon an}' contract, whether sealed or unsealed, for the payment of money," must be brought in ten years ; and " all actions upon con- tracts . . . express or implied," not in writing, in five years. In Texas," " actions for debt, when the indebtedness is evidenced by or founded upon any contract in writing," are barred in four years ; and by sec. 3207 the-same limitation applies to unwritten contracts. In Iowa,", actions "founded on unwritten contracts" must be com- menced within five years, and upon "written contracts " within ten years, after the cause of action accrues; in California," " upon any contract, obligation, or liability founded upon an instrument in writ^ ing," within four years, and upon those not in writing, in two years. In Oregon," actions upon " a contract or liability, express or im- plied," are barred in six years; and actions upon a judgment or decree of any court of the United States, or of any State or Territory within the United States, and upon sealed instruments, are barred in ten years. By sec. 6, actions upon any liability created by statute, except for penalties and forfeitures, are barred in six years ; and by sec. 11 all actions not specified are barred in ten years. In Minne- 1 Appendix, South Carolina. " Appendix, Michigan. 2 Appendix, Georgia. '^ Appendix, Wisconsin. 8 Appendix, Alabama. '' Appendix, Missouri. 4 Appendix, Mississippi. " Appendix, Arkansas. 6 Appendix, Tennessee. '^ Appendix, Florida. 6 Appendix, Kentucky. " Appendix, Texas. 7 Appendix, Ohio. " Appendix, Iowa. 8 Williams v. Williams, 5 Ohio, 444. " Appendix, California. 9 Appendix, Indiana. " Appendix, Oregon. 1° Appendix, Illinois. 72 STATUTES OF LIMITATION. [OHAP. II. sota, "an action upon a contract, express or implied;* in Kansas,^ "an action upon any agreement, contract, or promise in writing," or " an action upon any contract not in -writing, express or implied," must be commenced witiiin five j-ears in the former State and in three years in the latter. In Nevada,' " an action upon any contract, obligation, or liability founded upon an instrument in writing," must be com- menced within five years, and "an action upon a contract, obligation, or liability not founded upon an instrument in writing," within two years; in Nebraska,* " upon any agreement, contract, or promise in writing, five years," and " an action upon a contract not in writing, expressed and implied," within four years. A summary of the statutes in the several States relating to this matter has been given, in order that it may be seen how far the deci- sions of the courts of one State are applicable under this head in another, and also to show the applicability of the decisions of the English courts uflder sec. 3 of the statute 21 James I. upon this head, which is practically in force in all the States. Sec. 24. Account. Nature of Action. — The action of account is probably one of the oldest of the common -law actions,- and is resorted to to settle partnership accounts, and generally where there is a priority^ as against guardians in socage, or a person stands in the relation of a bailiff or receiver, and it really bears a closer relation to a bill in equity than to an action at law.' Anciently, this form of action was restricted, but gradually it was extended to cases of mutual account between merchants, and lay in all cases where a person calling himself a merchant brought an action against another, charging him as a bailiff or receiver.^ At law, it is the only remedy between partners to settle their partnership dealings, unless, as previously stated, there has been an express promise to account, or a balance agreed upon.' 1 Appendix, Minnesota. which had been paid by the plaintiff, and 2 Appendix, Kansas. that the defendant had failed to pay his ' Appendix, Nevada. one-half of the losses and expenses. An ' Appendix, Nebraska. accounting and payment of said one-half 5 Cotton V. Partridge, 4 M. & G. 285 ; was demanded. The defendant pleaded the Scott V. Mcintosh, 2 Camp. 238 ; Inglis v. statute of limitations. Held, that the action Hay, 8 M. & W. 769. was upon a sealed instrument within the The complaint in this action set up a meaning of said statute ; not an equitable co-partnership agreement between the par- action fbr contribution merely ; and so ties under seal, bearing date April 22, that the twenty years' limitation applied. 1869, which contained a covenant "that Dwinell w. Edey, 102, N. Y. 423. all losses happening to said finn . . . and Peters v. Delaplaine, 49 N. Y. 362, all expenses of the business shall be borne distinguished. by said parties in equal proportion." The « F. N. B. 117, D ; 1 Story's Eq. Jur. complaint then alleged in substance the 441 ; Cotton v. Partridge, oMte. expiration of the partnership agreement; ' Andrew v. Allen, 9 S. & R. (Penn.) an application of all its property and 241; Ozias w. Johnson, 1 Binn. (Penn.), assets to the payment of its debts ; that 191 ; Young v. McOormick, 2 N. J. L. the business had resulted in large los.ses, 663 ; Willson v. WUlson, 5 id. 791. §24.J ACCOUNT. 73 This remedy exists where parties have been ■engaged in a joint under- taking, and either one or all of them have received money or property which should be accounted for to the others ' as tenants in common of i-eal property,'' ot of personal property, as merchandise.' The excep- tion in the statute 21 James I., as to merchants' accounts, was confined to cases where an action of account would lie, or an action upon the case for not accounting.* This action, as a distinctive remedy, has fallen into disuse, and although it still exists in some of the States, yet it has been largelj- superseded by a resort to courts of equitj', where the rights of the parties can be better settled and enforced than in courts of law, and, too, where the remedy has been extended to a great variety of cases not recognized as coming within the scope of the remedy at law.* Formerly it was doubted whether assumpsit would lie upon an express promise to account, or upon a balance struck between partners, &c. ; but as that doubt was long since dispelled, assumpsit has also, in a lai^e variety of instances, taken the place of this form of action,' except, however, where there is an express promise to account, or a balance agreed upon, on a settlement of partnership accounts, as- sumpsit will not lie, but resort must be had to an action of account, or to a court of equity.' Thus, where a balance was struck in favor of 1 Kedvidekw. Meyer, 46 Mo. 600 ; Kid- der V. Eexford, 16 Vt. 169 ; Mattocks v. Lyman, id. 113 ; Swift v. Eaymond, 11 id. 317. 2 Thomas v. Thomas, 5 Exch. 28 ; Bar- num V. Landon, 25 Conn. 137 ; Lacou v. Davenport, 16 id. 331 ; Oviatt v. Sage, 7 id. 95 ; Dresser i). Dresser, 40 Barb. (N. Y. ) 301 ; Wiswell v. "Wilkins, 4 Vt. 137. But in such cases it is necessary to allege that the tenant made defendant has received more than his share of the rents or profits of the estate. Sturton v. Eichardson, 13 M. & W. 17 ; Henderson v. Easou, 17 Q. B. 701 ; Beer v. Beer, 12 C. B. 60. And in New York it should state that the account is mercantile, McMurray v. Eawson, 3 Hill ( N. Y. ), 59 ; and should also set forth distinctly all the grounds upon which the plaintiff claims to hold the defendant to an accounting, Ganaway v. Miller, 15 Vt. 162 ; and the plaintiffs particular in- terest in the property, Brinsmaid v. Mayo, 9 id. 31 ; and it should also appear that before action brought the plaintiff had demanded of the defendant that he render an account, Chadwick v. Duval, 12 id. 499 ; and an account cannot be enforced until the joint venture is ended, either by agreement or limitation, Ganaway v. Mil- ler, ante. In Maine, under the statute, it is held that actions of account between co-tenants, or a bill in equity therefor, are not subject to the six years' limitation, but to that of twenty years, under sec. 86. Spaulding v. FarweU, 70 Me. 17. « Baxter v. Hozier, 5 Bing. N. C. 288. 4 Cottam V. Partridge, 4 M. & G. 271. And it was held in this case that an open account between two tradesmen for goods said each to the other, without any agree- ment that the goods delivered on the one side .should be considered as payment for those delivered on the other, did not con- stitute such an account as concerns the trade of merchandise between merchant and merchant within the exception of the statute, and that the existencte of items in an open account within six years will not operate to take the previous portion of the account out of the statute. * 1 Story's Eq. Juris. 442; Bacon's Abr; tit. Accompt; Lookeyu. Lockey, Free. Oh. 518. 6 1 Story's Eq. Juris. 442 ; Tomkins v. Wiltshire, 5 Taunt. 431 ; Buell o. Cole, 54 Barb. (N. Y.) 353; Succession of Dal- hande, 21 La. An. 3. ' Bnell V. Cole, ante; Ferguson >/. Wright, 61 Penn. St. 258. 74 STATUTES OF LIMITATIOK. [CHAP. H. one partner, on the books of the Brm, after his death, and similar bal- ances were struck in favor of other partners, it was held that this was only evidence how the deceased partner stood with the firm, and not how he stood with his partners.* In Massachusetts, assumpsit is sub- stituted for account; and in cases where partnership accounts are in- volved, the court can appoint an auditor to take the accounts, giving to the parties all the advantages, without the disadvantages, of the action of account." This form of action has been extended in some of the States, so as to embrace other matters than accounts between partners, and to compel an accounting in all instances where a person can properly be charged as bailiff and receiver of the plaintiff.' But while this remedy cannot be said to be obsolete,* yet, as equit}- has con- current jurisdiction with courts of law for the settlement of partnership transactions, and most, at least, of the matters for which the common- law action of account lies, and as courts of equity have more ample powers than courts of law in this respect, the remedy at law will seldom be resorted to, except in those States where by statute express pro- vision is made therefor.' There are instances, however, where the remedy at law must be pursued, and equity will not entertain a bill to settle matters involved in this action ; ^ but it wiU hardly be profitable to go into details in reference to the matter in this work, as the prac- titioner will find no diflBculty in ascertaining which court to invoke in a given case. Sec. 25. Debt. — An action of debt, where "grounded upon any lending or contract without specialty," is expressly within the statute of 21 James I. § 3 ; and in most of the statutes in this country, even where this section is not adopted, the distinction between simple contracts and 1 Ferguson v. Wright, ante ; Wetmore co-admiiiistrator for property of the estate I/. 'Woodbridge, Kirhy (Oonn. ), 164. which came to the hands of the latter. So 2 Fanning!!. Chadwick, 3 Pick. (Mass.) it is a proper remedy by a ccstjii que thist 424. But account may be brought if the against a trustee of lands who has received party elects to do so. Fowle v. Eirkland, the profits. Dennisonu. Goehring, 7 Penn. 18 Pick. (Mass.) 299. St. 175. ' Adams v. Corbin, 3 Vt. 372 ; Smith * Griffith v. Willing, 3 Binn. (Penn.) V. Woods, id. 485 ; Swift v. Kaymond, 11 307 ; Travers v. Dyer, 16 Blatchf. (U. S. id. 317; Bertine v. Varian, 1 Edw. Ch. C. C.) 178; Stewart v. Kerr, 1 Morr. (N. Y.) 343 ; Green u. Johnson, 3 G. & J. (Iowa) 240 ; Neel v. Keel, 4 T. B. Mon. (Md.) 388. In the last-named case it was (Ky.) 162. held that account render is the only remedy 5 Tyler p. Nelson, 14 Gratt. (Va.)214; that can be brought against a guardian as Fraser ». Phelps, 4 Sandf. (N. Y. ) 682 ; such, except on his bond. In Griggs v. Andrews v. Murphy, 12 Ga. 431 ; Browne Dodge, 2 Day (Conn.), 28, it was held a v. Alston, 8 Fla. 307 ; Norwich, &c. R. R. proper remedy where personal property is Co. v. Storey, 17 Conn. 364 ; Gloninger v. limited over by way of remainder, after the Hazard, 42 Penn. St. 389. determination of the particular estate. In « Walker v. Che.ever, 35 N. H. 339 ; Adams v. Corbin, 3 Vt. 372, it was held a Garland v. Hull, 21 Miss. 76 ; Cummins proper remedy by a surviving administra- o. White, 5 Blackf. (Ind.) 356 ; Printup tor against the representative of a deceased v. Mitchell, 17 Ga. 558. §25.J DEBT. 75 specialties is observed, and this action, even tliough not preserved in form, exists in substance, and is generally provided for in the limitation acts, either expressly or otherwise.* Debt lies, in all instances, where a sum certain is due, or which is capable of being reduced to a certainty without any future valuation to ascertain or settle its amount, and to that extent will lie to recover upon simple contracts as well as assumpsit.'' It lies 1 In Maine, " all actions of debt founded upon any contract not under seal." In Vermont, "all actions of debt founded upon any contract, obligation, or liability not under seal." In New Hampshire, all personal actions, except for words, assault and battery, and imprisonment, shall be brought in six years, and this includes debt, except debt " founded upon any judg- ment or recognizance, or upon any contract under seal," which may be brought within twenty years. In Alabama, all actions upon judgments, sec. 3224, and actions founded upon any contract or writing under seal, sec. 3225 ; actions upon contracts, in writ- ing, not under seal, sec. 3226. In Massachu- setts, this form of action is abolished by statute, and an action upon the contract or obligation freed from the technicalities of this form of action is substituted. In Connecticut, no action "of debt on book or simple contract." In Rhode Island, the provision is virtually the same as 21 James I., except the words "lending or" are omitted. In New Jersey, substantially the same as 21 James I. ; so in Pennsyl- vania. In Delaware, by sec. 6, actions of debt are barred in three years. In Mary- land, this action is expressly provided for in sec. 1 of art. 69 of the code. In Vir- ginia, this action is embraced under sec. 8, c. 146. In North Carolina, this action is mainly covered by sees. 31 and 34. In South Carolina, this action is covered by sees. 113 and 114, c. 122, Rev. Stat, of South Carolina. lu Mississippi, this ac- tion comes under general clause, sec. 2669 Rev. Code, p. 720. In Tennessee, this ac- tion is covered by sec, 2775. In Kentucky, this class of actions is included under sees. 1 and 2 of art. 3, Gen. Stat. c. 71. In Ohio, an action ' ' upon a contract not in writing, " in six years, and upon a specialty or any agreement, contract, or promise in writing, in fifteen years. In Indiana, actions on accounts and contracts not in -writing in six years, and upon those in writing in twenty years. In Illinois, special provi- sion as to actions on contracts exists. In Michigan, " all actions of debt founded upon any contract or liability not under seal," six years. In Wisconsin, "an ac- tion upon any bond, &c., or other contract, whether sealed or otherwise," six years ; upon a sealed instrument, ' ' when the cause of action accrued in this State," ten years. In Missouri, " an action founded upon any writing, sealed or unsealed," ten years. In Arkansas, this action comes under the general clause, and not being specified, is barred in five years. In Florida, this class of actions come under sees, 10 and 12, c. 144. In Texas, the limitation of actions of debt upon written contracts is four years, and upon contracts not in writing in two years. In Iowa, this action is not named, but comes under divs. 3 and 4 of sec. 1659 of the code, making the bar to the action on unwritten contracts five years, and on written contracts, judginents, &c., ten years. In California, the action is not named, but comes within the provisions of the 1 statute, and the period of limitation varies from one to five years, according to the nature of the claim on which it is founded. In Oregon, this action comes under the provisions of sec. 6. In Minne- sota, the limitations imposed are contained in sec. 6. In Nevada, sec. 16 applies to this form of action. In Nebraska, sees. 10, 11, and 15 apply to this form of action. In West Virginia, this class of actions is embraced under sec. 6, c. 119. This form of action, however, is retained in but very few of the States, and especially is this the case where the practice is established under codes, the old common-law remedies, with all their technicalities and strictness, hav- ing given place to simpler remedies, which are supposed to be better calculated to pro- tect the rights of parties and insure jus- tice. 2 In Stookwell v. United States, 13 Wall. (U. S.) 531, it was held that it 76 STATUTES OF LIMITATION. [chap. II. for the recovery of a sum certain, although it arises from a collateral undertaking ; ^ as where a penalty is given by statute, and no other remedy is provided for its recovery,'' although the amount thereof is uncertain and subject to assessment by a jur^'.^ It lies for the recovery of a reward offered for the finding of lost or stolen goods, or for any purpose,* upon the judgment of an inferior court not of record,^ upon an express contract in writing for the payment of money," as by the payee or indorsee of a bill of exchange against the acceptor,' or by the indorsee against a remote indorser,' by the assignee against the as- signor of a note where the maker is insolvent,' to recover money ad- vanced upon a special contract Which has been rescinded,^" or where the price for goods has been paid but they are not delivered,^' or upon an open account for goods sold and delivered, " for services rendered under a contract full}' performed, or even when not fully performed in all respects, if the departure from its terms is assented to by the parties ; ^' and without pursuing this matter further, it may be said that debt upon a simple contract will lie in all instances where indebitatus assumpsit will lie, to wit, where an express contract, not under seal, has been performed upon the part of the plaintiff, according to its terms, so that nothing remains to be done to satisfy it but for the defendant to pay money in compensation." Indeed, originally debt was the ordinary would lie to recover a penalty under the revenue laws. United States v. Colt, Pet. (U. S. C. C.) 145 ; Dillingham v. Skim, Hemp. (U. S. C. C.) 181 ; Bank of Circle- ville V. Iglehart, 6 McLean (U. S.), 568. ^ Home V. Semple, 3 McLean (U. S. C. C), 150 ; Cato «. GUI, 1 ST. J. L. 11. But it does not lie upon a collateral prom- i«ie to pay the debt of another. Gregory V. Thomson, 31 N. J. L. 166. ^ United States v. Bougher, 6 McLean (U. S. C. C), 1277. ' United States v. Colt, ante. * Furman v. Parke, 21 N. J. L. 310. s Tindall v. Carson, 16 N. J. L. 94 ; Green v. Fry, 1 Cr. (U. S. C. C.) 137. " Kirk V. Hartman, 63 Penn. St. 97. ' Home V. Semple, ante ; Kirkman v. Hamilton, 6 Pet. (U. S.) 20. Home V. Semple, ante. But this prop- 18 Allen V. McNew, 8 Humph. (Tenn.) 46 ; Clark v. Eaap, 15 Ark. 172 ; Laduc V. Seymour, 24 "VVend. (N. Y.) 60. " Perkins v. Hart, 11 Wheat. (U. S.) 237; Dukes v. Leowie, 13 Ala. 467; Wright 1). Morris, 15 Ark. 444; Bayard v. MoLane, 3 Harr. (Del.) 139 ; Hancock v. Ross, 18 Ga. 364 I Adlard v. Muldoon, 45 111. 193 ; Ridgeley v. Crandall, 4 Md. 435 ; Fowler V. Austin, 2 Miss. 156 ; Bomeiser v. Dob- son, 5 Whart. (Penn.) 398 ; Mattocks *. Lyman, 16 Vt. 113 ; Harris v. Ligget, 1 W. &S. (Penn.) 301 ; Hunter ». Waldron, 7 Ala. 753 ; Baker v. Corey, 19 Pick. (Mass.) 496 • Ames v. Le Rue, 2 McLean, (U. S. C. C.) 216 ; Glover v. Collins, 18 N. J. L. 232 ; Bertrand v. Byrd, 5 Ark. 651; Brown v. Ralston, 9 Leigh (Va.), 532 ; Carson v. Allen, 6 Dana (Ky.), 395 ; Cooper V. Bickford, 3 Grant (Penn. ) Cas. osition is doubted. Weiss v. Munch Chauk 69 ; Hale v. Handy, 26 N. H. ( 6 Fost. ) 206 ; /-,_ rn !-.___ o,, Ingram w. Aahmore, 12 Mo. 574 ; Sykes ■». Summerel, 2 Browne (Penn.), 227 ; Kelly V. Foster, 2 Binn. (Penn.) 4 ; Jewell v. Schroeppel, 4 Cow. (N. Y. ) 564 ; Causten V. Burke, 2 H. & G. (Md.) 295 ; Miles u. Moody, 3 S. & R. (Penn.) 211 ; Snyder y. Castor, 4 Yeates (Penn.), 353 ; Cochran V. Tatum, 3 T. B. Mon. (Ky.) 405 ; Feeter tt. Heath, 12 Wend. (N. Y.) 477; Williams Ins. Co., 58 Penn. St. 295. 9 Pyle V. Monagly, 2 Harr. (Del. ) 468. " Jenkins v. Thompson, 20 N. H. 457. 11 Dubois V. Delaware, 4 Wend. (N. Y. ) 285 ; Byers v. Bostwick, 2 Treadw. (S. C.) Const. 7 ; Kimball v. Cunningham, 4 Mass. 504. ^^ Collins V. Johnson, Hemp ^U. S. C. C.) 279. § 27.] PEBT. 77 remedy upon simple contracts,* and the action of assumpsit did not come into general use until after Slade's Case, in 1603.* Debt lies upon a specialty in many cases, but in those instances the statute applicable to simple contracts does not applj;,' but when founded on contracts not under seal the statute does apply.* In Massachusetts the action of debt has been abolished by statute ;, ' and in many others it does not exist in form, although the rules applicable; thereto may apply in cases where, under the common-law practice, it would be the proper remedy. Especially is this the case in those States where the practice is regu- lated by codes. Sec. 26. Covenant is an action upon a sealed instrument or specialty, and never lies upon a simple contract. Upon sealed instru, ments a party frequently has his choice of remedies, between debt and covenant, although in very many instances, especially where the action is for unliquidated damages, covenant alone will lie.' If an instrument under seal is varied by a contract not under seal indorsed thereon, the whole instrument becomes a simple contract, and assumpsit is the proper remedy, and covenant will not lie thereon, and the statute begins to run thereon from the date of the indorsement.' Without stopping to particularize, the action of covenant may be said to be the only remedi strictly confined to specialty debts. Sec. 27. Suits in Admiralty. — In England it was formerly doubted whether a suit in admiralty for mariner's wages was within the Stat. 21 James I., it being said that it was a matter properly determinable at common law, and that allowing the admiralty jurisdiction therein was only a matter of indulgence ; ^ but whatever doubt may there have existed upon this subject was put at rest by 4 & 5 Ann. c. 16, which provides that " all suits and actions in the court of admiralty for sea- V. Sherman, 7 id. 109 ; Way v. -Wakefield, 44 Vt. 395; Head v. -Wadham, 1 East, 619; 7 Vt 228 • Felton v. Dickinson, 10 Mass. King v. Beeston, 3 T, R. 692. In a Mas- 287 • Bank of Columbia v. Patterson, 7 Cr. aachusetts case, Loring v. Whittemore, 13 (U S ) 299 ; Coursey v. Covington, 5 H. & Gray (Mass.), 228, where an agreement to J (Md) 45- Dubois «. Delaware, &o. Canal vary a sealed instrument was indorsed Co 4 Wend (N Y ) 285 ; Wood v. Gee, thereon, and not sealed, and subsequently 3 McCord (S 'c ) ' 421 ; Stout v. Gallagher, a sealed agreement to extend the time was 2 A K Mar (Ky ) 160 ; Speake v. Shep- indorsed thereon, it was held that the last Hard 6 Har & J. (Md.) 81; Bagley v. agreement under seal acted upon and gave Bates Wright (Ohio), 705. the force of a specialty to the last unsealed 1 Wilkinson on Limitations, 12 ; 3 agreement, and brought the whole under Blaokstone 341. ^'^'^ ^^''^ °^ * specialty. See also to the 2 Slade's Case, 4 Coke, 91. same effect in a similar case, Ake's Appeal, » Cockram v. Welby, 2 Mod. 212; White 74 Penn. St. 116. In Georgia, in Milledge ». PaSS" East, 57'8. «■ Gardner 29 Ga. 700, it was held that * Cockram v. Welby, ante. an unsealed agreement indorsed on a sealed 6 Gen Stat. c. 129, § 1. instrument is to be treated as a part of the « Browne's Actions at Law, 353 s original instrument and as though under Comyns's Dig. Pleader. ^**l' , ,, t- itw a ^ Hydevaie Co. v. Eagle R. R. & S. Co. » Bacon's Abr. Lim. (D) 4. 78 STATUTES OP LIMITATION. [CHAP. II. men's wages shall be commenced within six ^-ears after the cause of such action shall occur and' not after." But in this country it is held that State acts of limitations do not apply to such actions in our court of admiralty,^ nor does the statute of Anne above referred to.'' But courts of admiralty will not entertain stale demands, and twelve years' delay unexplained was held sufHcient to bar such a suit.' Sec. 28. Crimes. — At the common law there is no limitation to criminal procedure by indictment. This question was raised in an English case, where a person who had taken a bribe at an election was called upon to testify to the fact. By the Stat. 2 Geo. II. c. 24, a civil action therefor was barred in two years, and this period had elapsed ; but Lord Ellenborough cautioned him that although a civil action against him for the crime was barred, yet there was no limitation at common law to a criminal prosecution by indictment, and, therefore, that he was not bound to answer any question which might criminate him.* 1 WiUard v. Dorr, 3 Mas. (U. S. C. C.) » WUIard v. Dorr, ante; Gay v. Allen, 91 ; Brown v. Jones, 2 GaU. (U. S. C. C.) 2 W. & M. ((J. S. 0. C.) 303 ; The Sarah 477 ; The Mary, 1 Paine (U. S. C. C), Ann, 2 Sum. (U. S. C. C.) 286 ; Pitman v. 180. Hooper, 3 id. 286. * Willard v. Dorr, ante ; The Mary, * Dover v. Maestaer, 5 Esp. 92. anie. §29.] SPECIALTIES. 79 CHAPTEE m. Specialties. Sbc. 29. What are. 30. Judgments. 31. Statutory Provisions as to. 32. Kent, Actions foi-. 33. Avowry for Rent. 84. Foreign Judgments. 35. Mixed Claims, Instance of. 36. Liability created by Statute. Sec. 37. Special Statutory Provisions re- lating to Specialties. 38. When Concurrent Remedy is given by Statute. 39. Test as to whether Specialty or not. 40. Actions for Distributive Share of Estate. ^ Sec. 29. "What are. —All instruments under seal, of record, and liabilities imposed bj- statute, are specialties, within the meaning of the Stat. '21 James I., "without specialtj-." It becomes important to know what classes of obligations come under this head, because under the Stat. 21 James I. specialties are not embraced, and to a great ex- tent such also is the case in the statutes of the several States of this countrJ^ In England, by Stat. 3 & 4 Wm. IV. c. 42, all specialties are barred in twenty j-ears ; and even though the statute is not pleaded, it is said that the law raises a presumption of paj^ment from the lapse of that period of time, and other circumstances which is equally as effective as a bar as the statute ; '■ and in some of the States, as will be seen by 1 Best on Presumptions, 188. In Fisher V. Prosser, 1 Camp. 217, it was held that, after the lapse of a long time, in this case thirty-six years, a claim not within the statute, as in that case the uninterrupted possession by one tenant in common with- out any demand made for or any account- ing, would warrant a jury in presuming a demand. See also Mayor v. Horner, 1 Camp. 102, where it was held that from the lapse of a long time a grant might be presumed from the crown. See also Eld- ridge V. Knott, id. 214, where it was held that mere length of time short of the period fixed by the statute of limitations, and un- accompanied by any circumstances, is not of itself a sufHoient ground to presume a release or extinguishment of a quit-rent. In 1 Burr. 434, a case is cited by the court where payment of a bond was pre- sumed within eighteen years; but in that case, as in Carters. Straphan, 1 Cowp. 201, the presumption was founded upon the circumstances, and not on lapse of time alone. Lord Mansfield, in Eldridge v. Knott, ante, says, "The statute of limita- tions is a positive bar from length of time, and operates so conclusively that, although the jury and the court are satisfied that the claim set up subsists, yet they are bound by the statute to defeat the claim. There are many cases not within the stat- ute, where, from a principle of quieting possession, the court has thought that a jury should presume anything to support a length of possession. Lord Coke says somewhere that an act of Parliament may be presumed; and of late it has been held that, even in the case of the crown, which is not bound by the statute of limitations, 80 STATUTES O^ LIMITATION. [chap. III. the sj-nopsis of the statute given in this section, this presumption ia raised thereby. All instruments under seal, wherever executed, are specialties within the meaning of the statute, as bonds, deeds, leases, and all instruments executed in this manner, and even notes, or any contract sealed by the parties, whatever its nature, provisions, or pur- pose, come under this head.^ As to matters of record, it may be said that none are to be regarded as- such, unless made so by the law of and within the particular jurisdiction where the remedy is sought. SeC. 30. Judgments. — A judgmect obtained in the United States court, or in the courts of the State where the remedy is sought, is a specialty within the provisions of the statute ;' but a foreign judgment, or one obtained in any other State or country, is a mere simple-contract debt, and as such is baiTcd by the statute of the forum ;" nor unless the parties were personally served, or submitted to the jurisdiction of the court, is it more than prima facie evidence of a debt,^ and the statute a grant may he presumed from great length of possession. It was so done in the case of Hull V. Horner, Cowp. 102, not that in such case the court, really thinks a grant has been made, because it is not probable a grant should have existed without its being upon record, but they presume the fiict for the. purpose, and from a principle of qnieting possession. But," he added, "there is no instance of setting up any lejigth of time within the limitation fixed by the statute as a bar to the demand, and in cases of quit-rents, like the present, the reason for carrying back the limitation to the period fixed by the statute, namely, fifty years, is the stronger, because the consideration is so trifling. Though, if a real ground for supposing a release ox ex- tinguishment appeared, the smallness of the claim would have no weight. But in this case there is more length of time, which, barely as such, ought not to be received as a bar; and if so, the case stands without a pretence for supposing a release of extin- guishment. Because, on the other hand, the exact time when the payment was first refused is no proof ; and, further, the real or more probable ground of such refusal appears, namely, that the tenant had suc- ceeded in an action between him and his lord ; not that the lord had released it by any conveyance or the like; and if so, it might be good, while before the lord might think proper to bring an action for half-a- crown. Therefore, I am of opinion that it ought not to have been left to - pre- sumption of law within a less time than the period fixed by the statute." "A presumption," said Aston, "from mere length of time, which is to support a right, is very different from a presumption to defeat a right." 1 Penrose v. King, 1 Yeates (Penn.), 344 ;. Clark v. Hopkins, 7 Johns. Ch. (N. Y.) 553 ; Summerville v. Halliday, 1 Watts (Penn. ), 507. Judgment bonds are not within the statute, Aoheson v. Shenk, 2 Leg. Gaz. (Penn. ) 361 ; nor administra- tion bonds (original), Mittenberger v. Com., 14 Penn. St. 71; Com. v. Patterson, 8 Watts (Penn.), 515. 2 As to judgments in the United States courts and holding them conclusive, see Thompson v. Lee County, 22 Iowa,» 206 ; Pigot V. Davis, 3 Hawks (IT. C), 25; Pease V. Bennett, 17 N. H. 124 ; Dorsey v. Mow- ry, 18 Miss. 298; Barney v. Patterson, 6 H. & J. (Md.) 182 ; Durant v. Essex Co., 8 Allen (Mass.), 103; Arnold v. Booth, 14 Wis. 180; Buchanan v. Biggs, 2 Yeates (Penn.), 232; Shields t). Taylor, 21 Miss. 127. ' Walker v. Witter, 1 Doug. 1 ; Darby V. Mayer, 11 Wheat. (U. S.) 469; Piatt i). Oliver, 2 McLean (U. S. C. C), 267. In Arkansas, an action upon a foreign judg- ment is limited to five years. Brian v. Sims, 10 Ark. 597. i Wood V. Watkinson, 17 Conn. 500; Davidson v. Sharps, 6 Ired. 14; Amdt v. Amdt, 16 Ohio, 33; Welch v. Sykes, 8 111. 197; Cheriot v. Foussat, 3 Bmn. (Penn.) § -30.] SPECIALTIES, 81 applies to such judgments, unless otherwise provided therein.^ In those States in which the third section of Stat. 21 James I. is in force this rule prevails, as it does in all of them as to judgments of courts outside the United States; but in many of the States by statute "judgments or decrees of some court of record of the United States, or of this or some other of the United States," are all put upon the same footing, and excepted from the operation of the statute applicable to simple contracts ; as in Maine, Vermont, Massachusetts, New York, Michigan, Arkansas, Alabama, Iowa, Wisconsin, California, Oregon, Minnesota, and Nevada. In Nebraska, all actions upon a specialty, or " upon any agreement, contract, promise in writing or foreign judgment," are barred in four years. In most of the other States the statutes are silent as to judgments, especially judgments of the courts of other States. In New Hampshire,^ " actions of debt founded upon judgment or recognizance, or upon anj' contract under seal," are barred in twenty years. In Connecticut, bonds or other written obligations under seal and notes not negotiable are barred in seventeen years ; and no special provision exists as to judgments nor is there any general provision relative thereto, thus leaving them to the common-law presumption aris- ing from the lapse of twenty years. In Rhode Island, judgments come under the head of specialties, and under the general clause of sec. 1, like all specialties, are barred in twenty years. In New York, judg- ments and specialties are subject to the clause that provides that the 220 ; steel v. Smith, 7 W. & S. (Penu.) a court of record or not, is treated as a 447 ; Harness v. Green, 20 Mo. 316 ; Cam- specialty. Stockwell v. Coleman, 10 Ohio eron v. Wurtz, 4 McCord (S. C), 278 ; St. 33 ; and also see Mahurin v. Bickford, Hubhell V. Coudry, 5 Johns. (N. Y.) 132 ; 8 N. H. 54, where it was held that a judg- Turner v. Lambeth, 2 Tex. 365. ment of a justice of the peace rendered in 1 Bishop V. Sanford, 15 Ga. 1 ; Van another State was not within the statute. Alstyne v. Lemons, 19 111. 394 : Hubhell Otway v. Eamsey, Stra. 1090. V. Coudry, ante ; Pease v. Howard, 14 Johns. In Dieffenbach v. Roch, 112 N. Y. 621, (N. Y. ) 470 ; "Walker v. Witter, 1 Doug. 1 ; it was held that although under the code Hay V. Fisher, 2 M. & W. 722 ; Kimball v. upon the docketing of a justice's judg- "Whitney, 15 Ind. 250. But in many of ment in the county clerk's office, it be- the States, as will be seen by the synopsis comes a statutory judgment of the county given of the statutes, the judgments of court; it is not a judgment « rendered " in other States are put on the same footing that court, but remains "a judgment reu- as domestic judgments. But even in some dered in a court not of record," within the of the States where no such provision exists meaning of the provision of the code, de- it has been held that the judgments of daring that an action upon such a judg- courts of record of sister States are bind- ment must be commenced within six years ing as judgments in all the States, and after a "final judgment was rendered," operate as a merger of the original claim, and an action to compel a set-off of such a Napier v. Gidiere, Speers Ch. (S. C. ) 215 ; judgment against a judgment of a court of Clay V. Clay, 13 Tex. 195 ; Keith" v. Estell, record is an action upon the judgment, 9 Port! (Ala.) 669 ; Latourette v. Cook, 5 within the meaning of such provision, and Iowa 513 ; Moore v. Paxton, 1 Hemp, is not maintainable after the lapse of six (U S. C. C.) 51. In Ohio any judgment years from the time it was rendered, of the couiis of a sister State, whether of ^ Eev. Stat. c. 181, § 5. See Appendix. VOL. I. — 6 82 STATUTES OP LIMITATION. [CHAP. III. presumption of paj-ment shall attach thereto after twenty years. In Maine, " everj' judgment and decree " are presumed to be paid and satisfied at the expiration of twenty years after any duty or obligation accrued by virtue of such judgment or decree ; and this applies to judg- ments in other States and judgments of justices of the peace of that State ; and although no provision exists for the rebuttal of this pre- sumption, it is not absolute, and it may be rebutted by any competent proof.^ In New Jersey, the language of 21 James I. as to specialties is adopted, and no provision is made as to judgments except a provision that all judgments of any court of record of that State may be revived by scire facias any time within twenty years after the date of judgment and not after. As to leases under seal, indented or poll, single or penal, bills for the payment of money only and awards under seal, the lapse of sixteen years after an action accrues thereon aflbrds a bar. Sec. 31. Statutory Provisions as to. — In Pennsylvania, the third section of Stat. 21 James I. is adopted, and specialties are not within the statute ; and such also is the case in Maryland. In Mississippi, Tennessee, Kentucky, Florida, Virginia, North Carolina, South Caro- lina, and Georgia specialties are within the statute. In Alabama, the statute provides for actions upon any contract in writing under seal, and they are barred in ten years. The Wisconsin statute, in addition, includes judgments of courts of an}' of the Territories. In Delaware, actions founded upon a record or specialty are not within the statute, except so far as special . cases are provided for ; as actions upon sherifl's' recognizances, guardians' bonds, official obligations of certain State and county officers, specifically named, and bonds given to banks or other corporations in the State for the faithful discharge of the duties of officers or employes therein. In all other cases specialties are not within the statute. In Maine, no special provision is made for specialties ; consequently they are embraced under the general sec- tion, which provides that all personal actions not otherwise provided for shall be barred in twenty years. In Vermont, judgments are barred in eight years, as also are all actions of covenant other than covenants of warranty and seisin contained in deeds, which are barred in eight j'ears after the cause of aX;tion accrued, and actions of cove- nant for breaches of covenants of seisin and warranty in eight years after a final decision against the title of the covenantor in such deed ; otherwise specialties are not within the statute. In Massachusetts, all specialties are embraced under the general provision that personal actions not otherwise limited shall be barred in twenty years. In Ohio, specialties, like all contracts in writing, are barred in twenty years ; and in this State a recognizance for the stay of an execution " 1 Jackson v. Nason, 38 Me. 85 ; « Bobo v. Norton, 10 Ohio St. 567. Knight V. Macomber, 55 Me. 132; Noble V. Merrill, 48 Me. 140. § 81.] SPECIALTIES. 83 and a transcript of a judgment of another State* are regarded as specialties, but a domestic judgment is not.'' An indorsement of a note is a contract in writing under tliis statute,' and so is a subscription to the stock of a corporation.* In Indiana, provision is made as to con- tracts in writing and those not in writing, and no distinction is made. In Illinois, actions for arrearages of rent accruing under a lease under seal, or upon any single or penal bill, promissory note, or writing obligatory, for the direct payment of money, or the deliverj' of prop- erty-, or the performance of covenants, or upon an award, under seal, are barred in sixteen years ; judgments are barred in twenty years. In Michigan, all specialties, although not named, are within the general provision of the statute, and are barred in twenty years ; and such also is the case in Wisconsin. In Missouri, all actions of debt upon contracts sealed and unsealed are put upon the same footing, and are barred in ten years, and by the statute all judgments are presumed to be paid within twenty years after their rendition : and the same pro- vision exists as to all sealed instruments, which embraces all for the breach of which an action of debt will not lie. In Arkansas, all special- ties come under the general provision, and are barred in five years ; and judgments are presumed to be paid in ten years, and the same provision is applied to any instrument for the payment of money or delivery of propertj'. In Iowa, no distinction is made between sealed and unsealed instruments, and both, as well as judgments of courts not of record, are barred in ten years, and judgments of courts of record in twenty years. In California, judgments of courts of record are barred in five years, and all obligations in writing in three years, but the statute does not begin to run until it is entered and recorded.^ In Oregon, actions upon sealed instruments are barred in ten years, upon a liability created by statute, except a penalty or forfeiture, in six years, and judgments and decrees of courts of record in ten years ; so also in Minnesota. In Kansas, an action upon a " specialty," as well as any agreement, contract, or promise in writing, is barred in three years. In Nevada, no distinction is made between sealed and unsealed written instruments, and either are barred in four years, judgments of courts of record in five years, and statutory liabilities, except for penalties or forfeitures, in three years. In Nebraska, an action upon a specialty is barred in four years, except such bonds or obligations as are required by statute, which are barred in ten years, and judgments in four j-'ears. From the synopsis of our statutes relat- ing to specialties it will be seen that there is a great lack of uniformity, and that much doubt and confusion may well arise under this head, under some of them ; and it also demonstrates the necessity of bring- 1 Biasell V. Jandon, 16 Ohio St. 498. Gitson v. C. & N. Tr. R. E. Co., 18 id. 2 Tyler v. Winslow, 15 Ohio St. 364. 396. » Haines v. Thorp, 15 Ohio St. 136. ^ Ciim v. Kissing, 89 Cal. 478. ♦ Warner v. Callender, 20 Ohio St. 190; 84 STATUTES OF LIMITATION. [CHAP. in. ing together the gist of the decisions as to what classes of claims are to be regarded as spiacialties. Sec. 32. Kent, Actions for. —Actions for rent accruing under a lease under seal are not within the statute, ^ and the words " actions of debt for arrearages of rent " contained in the statute of James, and those which adopt its language in this respect, are held not to include actions for rent accruing under a specialty.'' But for rents accruing under a lease under seal which is so defectively executed as not to be operative as a lease,' or under a parol demise,* the action is within the statute, and comes within the class of rents embraced within and intended by the words " actions of debt for arrearages or rent." * But in many of the States the language of the statute is such as to embrace actions of debt for arrears of rent, whether they accrue under a lease by specialty or parol. Thus, in Maine, the language of the statute is, " all actions for arrears of rent: "° the same is also the case in Vermont' (and in both States the action is barred in six years) . In Massachusetts,' except upon leases under seal. In Michi- gan,' same as in Maine and Wisconsin." In New Hampshire, such actions come under sec. 5, and are barred in twenty years.^^ In Con- necticut, this class of actions accruing under a lease under seal are barred in seventeen years." In New Jersey, such actions are barred in sixteen years.^' In Delaware, this class of actions is not within the statute.^* In South Carolina, such actions are barred in six j-ears.^^ In Alabama, an action for arrearages of rent due on a lease under seal " is barred in ten years. In Ohio, actions upon " specialties " are limited to fifteen years, and actions upon other contracts to six years." In 1 Pease v. Howard, ante ; Buffum o. 2 Saund. 66 ; Stackhouse •;. Bamston, 10 Deane, i Gray (Mass.), 385. Ves. 453; Kane ». Bloodgood, 7 Johns. Ch. * In Freeman v. Stacy, Hutt. 109, there (N. Y. ) 90 ; Davis v. Shoemaker, 1 Bawle was a lease hy indenture for twenty years (Penn. ), 135; McQuesney ». Heister, 33 rendering rent. In an action of debt Penn. St. 435 ; Vechte v. Brownell, 8 thereon it appeared that the arrearages Paige Ch. (N. Y.) 212. sued for accrued more than six years before ^ Lansdell v. Gomer, 17 Q. B. 589. the action was brought. It was held that * Kane v. Bloodgood, 7 Johns. Ch. the action being for rent which accrued (N". Y.) 90; Elder r. Henry, 2 Sneed under a lease by indenture, it was not (Tenn.), 81. within the statute. Richardson, J., at ' Kane v. Bloodgood, ante ; Elder v. first inclined to the opinion that the action Henry, ante. was barred by the statute, .because the ' Maine, Appendix. statute extends to arrearages of rent ; but ' Vermont, Appendix, he afterwards changed his mind, and agreed ' Massachusetts, Appendix, with the other judges that this action of ° Michigan, Appendix, debt, being upon a lease by indenture, is w Wisconsin, Appendix, not within the statute. "The words are," ii New Hampshire, Appendix, said he, " ' all actions of debt grounded " Connecticut, Appendix, upon any lending or contract without '^ fjew Jersey, Appendix, specialt)', all actions of debt for arrearages i* Delaware, Appendix, of rent,' &c., and this is an action upon a l^ South Carolina, Appendix, contract by specialty." See also Collins u. " Alabama, Appendix. Goodal, 2 Vern. 235 ; Hodson v. Harridge, i' Ohio, Appendix. §33.] SPECIALTIES. Illinois, actions upon leases are barred in ten years.^ In Missouri, Iowa, and Oregon, all actions founded upon any writing, under seal, are barred in ten years,^ and in Indiana in twenty years. In Kansas, "an action upon any agreement, contract, or promise in writing" is barred in five years after the cause of action thereon accrues.* lu Nevada, specialties are not enumerated, but this class of actions comes under the general provisions of sec. 16, and is barred in five years ;^ and in Nebraska, actions upon a specialty are barred in four years.' Thus it will be seen that in several of the States actions for the recov- ery of rent or arrearages of rent accruing upon a lease under seal are not within the statute, and are left to the operation of the common- law presumption from the lapse of twenty years, or come within the provisions of general clauses applying to all causes of action not spe- cially provided for. Sec. 33. Avowry for Rent. — An avowry for rent created by deed, as for a rent-charge, has been held to be a specialtj' ; ° so, an action for rent originally created by act of Parliament ; ' but an action for rent reserved on a parol lease, or lease not under seal, is within the statute.' An action for an escape is not within the statute,* nor debt for a copy- hold fine,^° nor for not setting out tithes,''^ nor against a sheriff for money which he levied on & fieri fabias,^'^nov upon an award under the seal of the arbitrators ; ^' nor is a warrant of attorney within the statute." 1 Illinois, Appendix. , 2 Missouri, Oregon, Iowa, Appendix. See also California, Appendix, where all written contracts are put on the same footing and are barred in four years. In Minnesota, all actions on contracts, express or implied, are barred in six years. ' Kansas, Appendix. * Nevada, Appendix. 5 Nebraska, Appendix. ' Co. Litt. 115 a; Foster's Case, 8 Coke, 64 ; Faulkner v. Bellingham, 1 W. Jones, 237 ; Bacon's Abr. 227, D, 1. ' Faulkner v. Bellingham, Cro. Car. 81. 8 Freeman v. Stacy, Hutt. 109. 9 Jones V. Pope, 1 Saund. 37. !•* For the reason that it is not founded on a contract of lending. Hodgdon v. Harris, 1 Lev. 373. 11 Talony v. Jackson, Cro. Car. 513. 12 Cockram v. "Welby, 2 Mod. 212. IS Hodson v. Harridge, 2 Saund. 64; Rank v. Hill, 2 "W. & S. (Penn. ) 56; Smith V. Lockwood, 7 Wend. (N. Y.) 241. In Green, &c. v. S. P. R. R. Co., 64 Penn. St. 79, it was held that an award, although the submission is by parol, is not within the statute; but that when property is pur- chased at a price to be assessed by apprais- ers, the valuation is not an award, and that the statute bars an action thereon after six years, as it is a contract without specialty. But where a submission is by parol, and the award by parol, assumpsit lies thereon, as we have seen, and the award is within the statute, and can in no sense be said to be a specialty. In Hod- son V. Harridge, ante, the award was re- quired to be, and in fact was, under seal. When the submission is under seal the award is a specialty, although not under seal, and cannot be sued for in assumpsit, consequently is not within the statute as to simple contracts. Holmes v. Smith, 49 Me. 242 ; McCargo v. Crutcher, 23 Ala. 575; Horton v. Ronalds, 2 Port. (Ala.) 79; Tallis V. Sewell, 3 Ohio, 10. 1*. Morris v. Hannick, 21 Pittsb. L. J. (Penn.) 199. But while it was at one time thought that an action by an attorney for his fees' is not within the statute, be- cause they depend upon a record, 1 Mod. 246 ; yet, as we have seen, such is not the rule. 86 STATUTES OF LIMITATION. [CHAP. HL Sec. 34. Foreign Judgments. — Foreign judgments, as we have seen, are regarded as within the statute ; but this is not the case when the judgment was predicated upon a specialty, because in such cases the court looks beyond the judgment to the claim on which it is based ; and if the original claim would not be barred, the judgment is not.^ Thus, where a judgment obtained in Xew Brunswick was sued in Maine, the Supreme Court of that State held that, as the original claim was a witnessed promissory note, which is excepted from the operation of the statute of that State applicable to simple contracts, the statute did not apply.' In Ohio and in Xew Hampshire it has been held that even a judgment of a justice of the peace rendered in another .State is a specialty, and not within the statute.* But in most of the States only judgments of courts of record are excepted from the operation of the statute ; and in those States, and indeed, it is believed, in all of them except the two referred to, the judgment of a justice of the peace of another State, or even of that State, cannot and would not be regarded afe a specialty, ^ unless by statute justices' courts are made courts of record.^ Sec. 35. Mized Claims, Instances of. — A party may have a claim that is mixed, that is, both a simple contract and a specialty, and ma3' have his choice of remedies thereon. Especially is this the case where a note is secured by a mortgage of lands, or even of personalty where the mortgage is under seal. In such cases the note, not being under seal, is a simple contract, although it is recited in the mort- gage, and the statute runs against it as gainst other simple con- tracts ; but the mortgage is a specialty, and may be enforced at any time within twenty years (if that is the statutory period for barring specialty debts in the State where action is brought), although the 'Richards v. Bickley, 13 S. & K. Conger c. Vandewater, 1 Abb. Pr. (X. Y.) (Penn.) 395. x. s. 126. In Mississippi, the statute, is 2 Jordan v. Robinson, 15 Me. 167. held to apply to a decree of the Probate ^ Stockwell V. Coleman, ajite ; Mahnin Coort, Delworth v. Carter, 32 Miss. 206 ; V. Bickford, 8 X. H. 54. See also Rob- but otherwise in Pennsylvania, Bnrd r. inson w. Prescott, 4 X. H. 45, where such McGregor, 2 Grant (Penn.), 353. In a judgment is held not to be conclu.sive, Maine, a judgment of the comity commis- but as standing upon the same footing as doners is held to be within the statute, any foreign judgment. Woodman v. Somerset, 37 Me. 29 ; and in * ilowryj). Cheesman, 6 Gray (Mass.), Massachusetts a judgment of the police 515. court of Lowell was held not within the 5 In Xew York, while the court held statute, Bunnyan v. Murphy, 13 Jlet. that a justice's judgment is not within (Mass.) 251. Indeed, in aU cases the the statute, Pease v. Howard, 14 Johns, question whether a judgment is within (X. Y.) 479, judgments of the marine the statute or not depends entirely upon court were held to be within it, Lester the circumstance whether it is the judg- V. Redmond, 6 Hill (N. Y.), 590. But ment of a court of record; and this de- now, in New York, justices' judgments are pends, not upon the circumstance whether barred in six years, Nicholls v. Atwood, records are required to be kept or not, but 16 How. Pr. (>*. Y. ) 475 ; and on judg- whether it is declared so to be by the law ments of the marine court in twenty years, creating it. § 35.] SPECIALTIES. 87 efifect is to enforce the payment of a simple-contract debt.* A dis- tinction exists between an action growing directly out of, and pre- dicated and dependent upon, a specialty, and which cannot exist independent thereof, and one that is only incidental thereto, and can be maintained without resort to the specialty. Thus, an action of assumpsit will not lie upon a specialty,^ as upon an insurance policy under seal,° or a bond,* or for work done or materials furnished under an instrument under seal.' But this rule only exists when the right of action rests upon the specialty, or derives its vital force therefrom. If the specialty contract has been rescinded, waived, or departed from by an agreement not under seal, so that a promise independent of that expressed in the specialty can be implied, then the debt or cause of action ceases to be a specialtj' debt,' and an action can be supported, independent of the sealed contract' This exception arises in numerous instances. Thus, where a partnership is formed by indenture or an^ instrument under a^sX, prima facie, all actions, &c., for an accounting, between the parties, must be predicated directly upon the articles ;. but if one of the partners dies, and the other promises by parol to- account to his executor, an action of assumpsit maj' be brought upon such promise ; and the action not being founded upon the indenture,, although an incident thereto, the statute applies as to such action, although a suit upon the specialty for an accounting would not be barred.* So where one co-obliger under a bond has been compelled to, 1 Pratt V. Hnggins, 29 Barb. (N. Y. ) tual consent, and the plaintiff was, by tha. 227, agreement of dissolution, made the li(iui- 2 Hinokly w. Fowler, 15 Mass. 285 ; dating partner. In this action brought in. Fletcher v. Piatt, 2 Blackf. (Ind.) 522. 1884 for an accounting, &o., the complaint. 8 Marine Ins. Co. v. Young, 1 Cranch alleged that upon the dissolution the de- U. S.) 332 ; Stroehel v. Large, 3 MoCord feudant retained possession of iirm assets. (S C) 114. exceeding in amount his partnership inter- * Aiidrews v. Montgomery, 19 Johns, est, which excess was due and payable to- (N. Y.) 162 ; Brown v. Houdlette, 10 Me. the plaintiff. The defendant's answer de- ogg ' nied these averments and alleged that a. 6 Porter v. Androscoggin K. R. Co., 37 settlement was made at the date of the jjg g^g_ dissolution, and also set up the statute of 8 Aiken v Bloodgood, 12 Ala. 221; limitations as a defence. It was held, that Little V Morgan, 31 N. H. 499 ; Oilman the action was barred by the statute ; that, V School Dist., 15 id. 215 j Pierce v. Lacy, the plaintiff, by the agreement became the. 23 Miss. 193 : Brown v. Gauss, 10 Mo. authorized agent of the partnership, and ngg as such, it was his duty to collect and re- T* Charles v. Scott, 1 S..& R. (Penn.) alize its assets ; that the claim against the 294- Gilmore v. Pope, 5 Mass. 497; defendant was an asset, and so it was the Dutchess Cotton Co. v. Davis, 14 Johns, plaintiff's duty to collect it ; that the cause- fN y 1 238 °^ action, therefore, accrued immediately. S Codman ». Rogers, 10 Pick. (Mass.) upon the dissolution. .._ The distinction between such a case and in Gray « Green, 125 N. Y. 203, the one where an action is brought against the parties, prior' to 1871, were co-partners; liquidating partner, or where an action is in that year the firm was dissolved by mu- brought against the estate of a deceased 88 STATUTES OF LIMITATION. [CHAP. Hi. pay the whole amount secured therebj', he may bring assumpsit against the other for contribution, because, although the original indebtedness arose out of the bond, which is a specialty, yet the claim upon which the action is predicated rests not upon the bond, but upon the promise which the law implies, on the part of co-obhgers, to share equally the pecuniary consequences of their venture ; ^ and this distinction, to wit, between an action founded upon and created by a specialt3-, and one which, although an incident of a specialtj-, yet rests upon an express or implied promise, is necessarj' to be observed, as in the former instance the statute does not applj% while in the latter it does. This matter may be illustrated in the case of a legacy, while a plea of the statute of limitations, to an ordinary action for its recovery, cannot be interposed, unless the statute expressly so provides ; ^ and this is also the rule in courts of equity ; ' but if there exists a liabilitj' upon the executor because he has personal assets in bis hands,^ so that the law can, or will, raise an implied promise on the executor's part to paj- it, or if he has expressly promised to pay it over, then assumpsit lies therefor ; * and to this express or implied promise the statute would apply ; but it only bars the action upon the promise ; it does not defeat the legatee's remedy for the legacy by the ordinarj' remedies therefor. In such cases, in some instances, it has been held that the statute applies after the expiration of the period fixed in the will for payment, and demand has been made for payment ; ' and such also is the case when the trust is ended and there has been a settlement between the executor and legatee.' So, also, it has been held that assumpsit will lie to recover a balance struck, although the account going to make up such balance embraces specialties ; * or upon a promise to pay the assignee of a specialty ; » and generally, it may be said, assumpsit lies whenever there partner, ia simply this, in the case of a « Thompson v. McGaw, ante. iliquidating partner, he is entitled to a rea- » Goodwin v. Chaffee, 4 Conn. 166. sonable time within which to perform the But in this case there were no assets In duties of his trust, and until its expiration the hands of the executor without resort- a right of action against him does not ae- ing to the realty, and for this reason the crue ; while in the case of a deceased part- court held that assumpsit would not lie, as ner, a cause of action against his estate for the law could not raise an implied prom- contribution accrues when the partner- ise. See also Knapp u. Hanford, 6 id. ship business has been so far settled as 174. to demonstrate the need of contribution ^ Woodruff ». Woodruff, 3 N. J. L. and indicate the amount required. 552 ; Cowell v. Oxford, 6 id. 432 ; Clark v. Hammond v. Hammond, 20 Ga. 556, Herring, 5 Binn. (Penn. ) 33 ; Goodwin i'. disapproved. Chaffee, ante ; Farwell v. Jacobs, 4 Mass. 1 Penniman o. Vinton, 4 Mass. 276.' 635 ; "Warren «. Rogers, 2 Root (Conn.), 2 Perkins v. Cartwell, 4 Harr. (Del.) 156. 270 ; Thompson v. McGaw, 2 Watts « Young v. Cook, 30 Miss. 320. (Penn.), 161 ; Doebler v. Suavely, 5 id. ' Young v. Cook, arete; Thompson v. 225 ; Duvdon o. Gaskill, 2 Yeates (Penn.), McGaw, ante. 268. In Louisiana, such actions are barred 8 Gilson ti. Stewart, 7 Watts (Penn. ), in ten years. Nolasco u. Lurtz, 13 La. 100 ; Miller v. Watson, 7 Cow. (N. Y. ) 3.<». ■4-"- 100. ^ , 9 Compton v. Jones, 4 Cow. (X. Y.) 13, §-35.] SPECIALTIES. 89 IS an express promise, or the law will raise an implied promise as an incident of the specialty ; ^ and in such cases the statute runs against the assunapsit, but not against the specialty obligation, and remedies, There being no statutory provision as to legacies in this country, the law upon this subject here stands as it did in England prior to the adoption of the statute 3 & 4 Wm. IV., ; and there is no limitation aguinst a trust, as there was none under Stat. 21 James I. c. 16 ; ^ and executors and administrators being express trustees, they cannot set up the statute against the claims of legatees or distributees.^ In an English case,* Lord Nottingham held that a legacy was nou barred by the statute, " nor ever had been so." « But this matter will 1 Baird v. Blagrore, 1 Wash. (Va.) 176; Arnold v. Hickman, 6 Munf. (Va.) 15 ; Hills V. Elliott, 12 Mass. 26 ; Jones V. Law, 4 Humph. (Tenn.) 333 ; WU- loughby V. Spear, 4 Bibb (Ky.), 879. " HoUis's Case, 2 Ventr. 845 ; Brittle- bank V. Goodwin, L. R. 6 Eq. 545 ; Har- greaves v. Miohell, 6 Madd. 326 ; Yingling V. Hesson, 16Md. 112; Barker t>. Martin, 5 Sim. 380 ; O'Bee v. Bishop, 1 De G. F. & J. 137 ; Wedderbern v. Wedderbern, 2 Keen, 722. ' Bailey v. Shannonhouse, 1 Dev. Eq. (N. C.) 416 ; Lafferty v. Turley, 3 Sneed (Tenn.j, 157 ; Amos v. Campbell, 9 Fla. 187 ; Picot V. Bates, 39 Mo. 292 ; Smith v. Smith, 7 Md. 55 ; Knight v. Brawner, 14 id. 1. * Anonymous, 2 Freem. 22 pi. 20. ' Parker v. Ash, 1 Vern. 257; Spar- hawk V. Buel, 9 Vt. 41 ; "Wood v. Ricker, 1 Paige Ch. (N. Y.) 616 ; Cartwright v. Cartwright, 4 Hayw. (N. C.) 134; Doeb- ler V. Snavely, 5 Watts (Penn. ); 225 ; Norris's Appeal, 71 Penn. St. 120 ; Irby v. McCrea, 4 Desau. (S. C.) 422 ; McCarter V. Camel, 1 Barb. Ch. (N. Y. ) 455 ; Per- kins V. Gartnell, 4 Harr. (Del.) 270 ; Lau- zer V. De Meyer, 2 Paige Ch. (N. Y. ) 576 ; Smith t». Remington, 42 Barb. (N. Y.) 75 ; Lafferty v. Turley, 3 Sneed (Tenn.), 157. In Massachusetts, the bar of the statute is expressly excluded. See Appendix ; also Brooks V. Lynde, 7 Allen (Mass.), 64; Kent V. Dunham, 106 Mass. 586. , In Sheldon i>. Sheldon, 183 N. Y. 1, it was held, that a legacy given to a creditor of the testator of more than the amount of the debt, does not operate as a payment of the debt, in the absence of any words in the will from which an intent to extin- guish the debt can be inferred. In an action for an accounting for moneys alleged to have been received in 1864 by S., defendant's testator, who died in 1880, for the use of the plaintiff, the wife of S., the statute of limitations was pleaded as a defence. The trial court found that the money in question was received by S., upon an agreement with plaintiff that he should control and invest the same for her benefit, and when requested, ac- count to her for the same and the increase from investments thereof; held, that in view of the finding, the statute was not a defence ; nor was it a defence that upon the accounting by defendants as execu- tors, after due notice for the presentation of claims, no claim was presented by the plaintiff. But it was held, that the finding could not be sustained upon evidence simply showing the receipt of the money by S. upon an agreement to pay it to the plaintiff on request, and that if the money was so received the claim would be barred by the statute. In the case last cited it appeared that S. received the money, which was the proceeds of the sale of lands belonging to the plaintiff. The evidence relied upon to sustain this finding consisted of statements made by S. to different persons : one to the attorney at whose office the sale was consummated, to the effect that the lands standing in the plaintiff's name and the avails thereof when sold belonged to her, and that he desired she should have the benefit of it at his death, if not before; the other was to the effect that his wife had money which he was using and investing 90 STATUTES OF LIMITATION. [CHAP. in. be more fully treated under the head of Executors and Administrators, and its further consideration in this place will not be profitable. Sec. 36. Liability created by Statute. — In all cases where liability is created by the positive requisitions of a statute, and not by the act of the parties themselves, the liability is treated as being in the nature of a specialty, and is not within the Statute of 21 James, nor within the statutes adopted in the several States applicable to simple contracts, unless expressly made so by the statute itself. Sec. 37. Special Statutory Provisions relating to Specialties. — In Maine,'- contracts under seal are excepted from the operation of the statute ; but it is provided by sec. 25 that judgments and decrees of any court of record of the United States, or of that or any other State, or of a justice of the peace of that State, shall be presumed to be paid and satisfied at the expiration of twenty years after any .duty or obligation accrued by virtue of such judgment or decree, and no provision is made for any renewal of the same by any acknowl- edgment or payment. In Vermont," actions of debt or scire facias on judgments must be brought within eight years after the rendi- tion of the judgment, and also all actions of debt on specialties ; * and also all actions of covenant, except covenants of warranty and seisin, are barred within eight years next after the cause of action accrued ; and all actions of covenant on any covenant of warranty or seisin, within eight years next after there shall have been a final decision against the title of the covenantor ; and on covenants of seisin, within fifteen j-ears from the time when the cause of action accrued. In New Hampshire, actions of debt founded upon any judgment or recog- nizance, or upon any contract under seal, may be brought within twenty years ; and mortgage notes are not barred until the mortgage itself is ; * and in Massachusetts ° actions upon this class of claims are barred in twenty years. So also in Rhode Island." In Ohio,' all actions upon specialties are barred in fifteen j'ears. In Michigan,* specie- ties come under the general provisions of the statute, and are barred for her. It appeared that S., in 1879, ex- other land, which together amounted near- ecuted to plaintiff a note which stated the ly to the purchase-money so received by S., consideration to be " cash borrowed." She and the plaintiff executed discharges of the made a claim thereon against the estate, mortgages which acknowledged payment and the same was paid by the executors, thereof in full. It was held that the evi- She made no claim for the money in ques- dance did not sustain the finding. tion until three years after final settlement ' Appendix, Maine. of the executor's accounts. Due notice to » Appendix, Vermont. present claims -was published, and the de- « Sec. 10 of the act. cree on such settlement cited thatall parties * Appendix, New Hampshire. appeared. The plaintiff was paid in full » Appendix, Massachusetts, a legacy given her by the will. It also « Appendix, Rhode Island. appeared that about the time of the sale ' Appendix, Ohio. of the land two mortgages were executed 8 Appendix, Michigan. to plaintiff, one by one of the grantees upon __ ■ § 38.] SPECIALTIES. 91 ill twenty years. So also in Wisconsin.^ In Oregon," all actions upon specialties, including foreign judgments, are barred in ten years. In California,' actions upon judgments, inust be brought within five j'ears, and actions upon any contract or obligation in writing within four years ; and by a general clause, all actions for relief not other- wise provided for are barred in four years, and this brings all spe- cialties under the same head. In Minnesota,* all contracts or other obligations in writing are barred in six years, including actions upon any liability created by statute, except penalties and forfeitures where the penalty is given to the party aggrieved, which are barred in three years, and actions upon a forfeiture or penalty to the State, which is barred in two j-ears, and upon penal statutes where the penalty is given in whole or in part to the person who prosecutes, which are barred in one year ; and all matters not otherwise provided for are barred in ten years, which necessarily embraces all specialties not specially provided for. In Kansas, all actions upon specialties are barred in three years. In Nevada,^ specialties come under the general clause of sec. 18, and are barred in three years, except actions upon a statute other than a penalty or forfeiture ; and for a penalty or forfeiture to the State in two years, and also where it is given to an individual. In Nebraska,' actions upon specialties are barred in four years, except statutes for a penalty or forfeiture, which are barred in one year. Sec. 38. When Concurrent Remedy is given by Statute. — From this summary it will be seen that in several of the States this class of claims are not embraced within the statute, but are left either to the operation of statutory or common-law presumptions. But, as we have seen, it is only where the statute creates the liability, and is directly the ground of the action,' that it is exempt from the operation of the statute. Thus, where property is taken under a statute which also provides a remedy for the assessment of consequential or other 1 Appendix, Wisconsin. Coming v. MoCullough, 1 N. Y. 47. But ' Appendix, Oregon. while in this case the form of the action 8 Appendix' California. was assumpsit, it is difficult to appreciate * Appendix, Minnesota. the reasoning of the court that the liability 6 Appendix Nevada. was not created by statute. It is true that 6 Appendix,' Nebraska. the original claim upon which the judg. » Under the New York statute referred ment sought to be enforced against the to ante, an action was brought against a stockholder was created ty the act of the stockholder of an incorporated trading parties, but the defendant s liability there- company, the charter of which provided for was created by the statute, and could that a creditor might, after judgment ob- not exist independently of it ; and this tained against the corporation, and execu- being the case, we are decidedly of the tion returned unsatisfied, sue any stock- opinion that the decision is wrong, and holder therefor It was held that the action that the doctrine expressed by Story, J., was not barred in three years, under the in Bullard v. Bell, 1 Mas. (U.S.C.C.) 243, provisions of the statute- referred to, ante, in a case involving a similar question, is Jiecanse the liability was not created by the true one. statute, but was a valid claim for six years. 92 STATUTES OP LIMITATION. [CHAP. III. damages, the statute does not applj-.* But if, instead of resorting to his statutory remedy, a party resorts to his legal title and common-law remedj-, as trespass or ejectment, the statute bars his claim as to past damages in six j'ears.'' The doctrine stated supra was well expressed by Stokt, J., in a case where, under the statute, it was sought to recover a debt against a corporation against one of its stockholders. The action ' was debt, and the. defendant insisted that the action would not lie, as the undertaking was collateral, and was barred in six years, as any other simple contract would be. But the court held that, as the statute created the liability, and the right of action would not exist indepen- dently of it, the case was not within the statute of limitations then existing in New Hampshire (where the action arose) , which, so far as " specialties " are concerned, was identical with the Statute 21 James I. He said : " I agree at once to the position that the bills of the bank are to be considered originally as the debts of the corporation, and not of the corporators ; 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 cor- poration. On the contrary, the law contemplates a privity between them ; and upon that privity has created an obligation on the corpora- tors, under certain circumstances, to pay the debts 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 statute to be done creates a duty on the party, which he is bound to perform. The whole theory and practice of practical and civil obligations rest upon this principle. When therefore, a statute declares that, under certain circumstances, a stockholder in a bank shall pay the debt due from the bank, and those circumstances occur, it creates a direct and immediate obligation to pay it. The consideration may be collateral or not ; but it is not a subject of inquiry, and to deny that it is a duty on the stock- holder to pay the money is to deny the force of the statute itself, for a duty is nothing more than a simple obligation to perform that which the law enjoins. Here, then, the law has declared that the stockholders shall be liable to pay a specific sum, and it imposes on them a duty to do so. How, then, can the court say that debt does not lie, since there is a duty on the defendant to pay a determinate sum of money ? There is no reason, under this view of the case, for entertaining any question as to collateral undertakings. The law has created a direct 1 Hannum u. West Chester, 63 Penn. 404. A municipal assessment is not within St. 475 ; Foster v. Cumberland Valley the statute. Council v. Moyamensing, 2 R. E. Co., 23 id. 371, holding a contrary Penn. St. 224; Magae v. Chambersburgh, doctrine, -was overruled by Delaware, L. & 46 id. 368. W. R. R. Co. V. Burson, 61 id. 369; Mc- 2 MeClinton v. Pittsburgh, &c. E. R. Clinton w. Pittsburgh, &c. R. R. Co., 66 id. Co., ante,^ § 39.] SPECIALTIES. 93 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 un- doubtedly lie. The law esteems this an obligation created by the high- est kind of specialty. Indeed, if debt would not lie in this case, it is inconceivable how assumpsit could. There is no pretence of any ex- press promise ; and if a promise is to be implied, it must be because there is a legal liability, independent of any promise 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 exist a duty sufficient to create a promise, then it is sufficient to sustain an action of debt." Sec. 39. Test as to whether Specialty or not. — It may be said that the test by which to determine whether a statute creates a spe- cialty debt or not is, whether, independent of the , statute, the law implies an obligation to do that which the statute requires to be done, and whether independently of the statute a right of action exists for the breach of the duty or obligation imposed by the statute. If so, then the obligation is not in the nature of a specialty, and is within the statute, so long as the common-law remedj' is pursued ; but if the statute creates the duty or obligation, then the obligation thereby imposed is a specialty, and is not within the statute. If the statute imposes an obligation, and gives a special remedy therefor, which other- wise could not be pursued, but at the same time a remedy for the same matter exists at the common law independently of the statute, and the statute does not take away the common-law remedy, the bar of the stat- ute is effectual when the common-law remedy for the breach of the common-law duty or liability is pursued, but is not applicable when the special statutory remedy is employed.^ It must be understood, however, that if the statute merely changes the remedies existing before and the change is general as to a particular class of liabilities existing before, no change arises therefrom as to the application of the statute of limitations, as it is not the nature of the remedy, but of the claim upon which the remedy is predicated, that determines this question.'' 1 MoClinton v. Pittsburgh, &o. R. R. 204 ; Coply v. Dormique, 2 Lee, 166 ; Co., ante. In Hannum v. West Chester, Freeland v. McCuUough, 1 Den. . Leigh, 1 Dev. (N. C.) Eq. 366; Eyan v. Parker, 1 Ired. (N. C.) Eq. 89; Harrison u. Harrison, 1 Call (Va.), 419; Watkins v. Harwood, 2 G. & J. (Md.),107; Lingan v. Henderson, 1 Bland (Md.) Ch. 236; Mitchell B. Woodson, 37 Miss. 567; Mandevill v. Lane, 28 id. 312; Borden v. Perry, 20 Ark. 293 ; Harris ■«. Mills, 28 111. 44; McDowell v. Heath, 3 A. K. Mar. (Ky.)222; Shelbys. Shelby, Cooke(Tenn.), 179; Murphy v. Blair, 12 Ind. 184; Bailey V. Carter, 7 Ired. (N. C. ) Eq. 282; Thomas V. Harvie, 10 Wheat. (U. S.) 146; Judah V. Brandon, 5 Blackf. (Ind.) 506; Demarest V. Wynkoop, 3 Johns. (N. Y.) Ch. 129 ; Perkins v. Cartwell, 4 Harr. (Del.) 270 ; Lansing v. Star, 2 Johns. (N. Y.) Ch. 150. 1 Bailey v. Carter, 7 Ired. (N. C.) Eq. 282. A court of equity will give effect to the statute in all cases where the plaintiff could have brought an action at law for the same matter. Goddell v. Kimmel, 99 §58.] EQUITABLE ACTIONS. 135 case,^ before the adoption of the statute of "Wm. IV., which expresslj' ex- tends the statute to courts of equity, went so far as to hold that courts of U. S. 201 ; Mann v. Fairchild, 2 Keyes (N. Y.), 106; Roosevelt v. Mark, 6 Johns. (N. Y.) Ch. 286 ; Clark v. Ford, 3 Keyes (N. Y.), 370; Stafford i>. Bryan, 3 Wend. (N. Y.) 532 ; McCrea v. Purmort, 16 id. 632 ; Spoor v. Wells, 3 Barb. (N. Y.) Ch. 199 ; Elmendorf v. Taylor, 10 Wheat. (U. S.) 152; Sher-wood v. Sutton, 5 Mas. (U. S.) 143 ; Pratt v. Northam, 5 id. 95 ; Hunt V. Wickliffe, 2 Pet. (U. S.) 201. A plea of the statute of limitations was overruled upon letters produced, assign- ing reasons for declining to pay, and rec- ommending plaintiff to bring an action, as amounting to a sufficient acknowledg- ment of the debt to take it out of the stat- ute, Upon the authorities, though against principle. Baillie v. Sibbald, 15 Ves. 185 ; Baillie v. Lord Inohiquin, 1 Esp. 435. Payment of a dividend under a com- mission of bankruptcy against one partner raises a new assumpsit by the other, de- priving him of the benefit of the staiute of limitations. £a; parte Dewdney, 15 Ves. 499. Before the statute of 4 Anne, o. 16, § 19, there were no exceptions in the stat- ute of limitations in this country ; and even since that time it has been held that the saving in that statute is not to be extended according to equity; for though the courts of justice may be shut up (tem- pore guerrce), so as that no original could be filed, yet the statute continues to run against a demand. Beckford v. Wade, 17 Ves. 93 ; Aubry v. Fortescue, 10 Mod. 206; Hall v. Wybourn. 2 Salk.- 420. Tlie statute of limitations is founded upon the soundest principles, and courts of equity are bound to adopt it where the legal and equitable title so far correspond, as that the only difference is, that the one must be enforced in this court, the other in a court of law. Manners, C, in Medlicott i). O'Donel, 1 B. & B. 166. The statute does not bar a hill of revivor, after a de- cree to account, but it rests in the discre- tion of the court to give or refuse relief. Egremont v. Hamilton, 1 B. & B. 531; Hol- lingshead's Case, 1 P. Wms. 742; Hovenden V. Lord Aunesley, 2 Sch. & Lef. 607. In Sugar Eiver Bank v. Fairbank, 49 N. H. 139, Bellows, C. J., in commenting upon, the extent to which a court of equity will go in enforcing statutes of limitations, says: "As a general rule, courts of equity are bound by a statute of limitations equally with courts of law, and they cannot disre- gard the plain requirements of such stat- ute; for that would be to repeal it. Even when the statute, in terms, applies only to actions at law, which are enumerated, courts of equity act in analogy to it, and. refuse to grant relief in cases coming, within its provisions. In the case of ex- ecutors and administrators the limitations- imposed by statutes are more sti-ingently enforced than those of the general stat- utes of limitations, both at law and in equity ; and it has been held that the- omission to embody in the former statute the exceptions contained in the latter indi- cate the purpose to make the bar of suits against executors and administrators abso- lute." See also Atwood v. Rhode Island Agi-icultural Bank, 2 R. I. 191 ; Walker v. Cheever, 39 N. H. 420; Judge of Probate- V. Brooks, 5 id. 82; Cutter v. Emery, 37 id. 567-; Ticknor v. Harris, 14 id. 272 ; Burdock v. Garriok, L. R. 5 Ch. App. 234; McCartee v. Camel, 1 Barb. (N. Y.). Ch. 455;. Flood v. Patteson, 29 Beav. 293;, Sibbering v. Balcarras, 3 De G. & Sm. 735;. Downes v. Bullock, 9 H. L. Cas. 1 ; Wright V. Vanderplank, 2 K. & J. 1 ; Mills v. Drewitt, 20 Beav. 632; Portlock v. Gard- ner, 1 Hare, 594. A claim by a creditor, against a legatee, to have the 'legacy re-- funded for payment of the debt, will be- barred, in analogy to the statute of limita- tions, by a. lapse of four years from the time when the insolvency of the executor was ascertained by a return of nulla bona to an execution against him. Miller v. Mitchell, 1 Bailey (S. C.) Ch. 437. The statute of Tennessee does not run' to bar the recovery of a legacy from the executor, 1 Hovenden v. Annesley, 2 Sch. & Lef. 629. 136 STATUTES or LIMITATION. [CHAP. VI. equity did not adopt the statute merely by analogy of, but in obedience to, the statute ; and so generally did the English coui-ts of equitj' follow the statute, that the enactment of the statute referred to was regarded as little more than giving a statutory sanction to a'well-established rule of those courts.* The statute is regarded as a defence, as well in equity as in law, where it confers absolute rights upon the party seeking its benefits. Thus, it would be preposterous to suppose that, where the title to lands has become absolute in a person by an adverse possession of them for the statutory period, a court of equity is not bound to give effect to such title, as well as a court- of law ; and it may be safely said that, regardless of the question whether the statute is applied in express in equity, there being no statute of that State giving a legal remedy. McDonald v. McDonald, 8 Yerg. (Tenn.) U5. Where, by statute, the action of assumpsit is lim- ited to three years, and that of debt to six, a cause of action on which assumpsit or debt may be brought will not be barred in the form of debt under six years ; and where a bill in equity is founded on the same cause of action, the limitation will be to six years. Burdoiue v. Shelton, 10 Yerg. (Tenn.) 41. Where a party attempts to enforce in equity a claim, on which debt or assumpsit woiild lie, if he had sued at law, the limitation of the former action being three years, and that of the latter six years, it will be considered, in respect to the statute of limitations, as an ■ action of debt. Bedford v. Brady, 10 Yerg. (Tenn. ) 350. Twenty years' adverse pos- session succeeding an actual or virtual dis- seisin bars a. suit in equity as well as at law, and three years added to such adverse possession, after infants, who hold a claim to land in controversy, have arrived at full agp, bars their claim. Gates o. Jacob, I B. Mon. (Ky.) 306; Dexter v. Arnold, 3 Sum. (U. S.) 152; MiUer v. Mclntyre, 6 Pet. (U. S.) 61 ; Coulson v. Walton, 9 id. 62; Lewis v. Marshall, 5 id. 470; Bow- man V. Wathen, 1 How. (IT. S.) 189; Rhode Island ■». Massachusetts, 15 Pet. (U. S.) 233 ; Peyton v. Stith, 5 id. 485 ; Bank v. Daniel, 12 id. 33 ; Hayman v. Keally, 3 Cranch (U. S. C. C), 325. 1 Cholmondeley v. Clinton, 2 Jac. & W. 56; Hollingshead's Case, 1 P. Wms. 743 ; Edsell V. Buchanan, 2 Ves. 83; South Sea Co. u. Wymondsell, 3 P. Wms. 143. The true meaning of the statute of limitations. as applied to titles to land, is, that the party should have twenty years, during which it should be open to him to assert his title, and failing to do so a court of equity can afford no relief to him ; and in such cases the court acts not by analogy, but in obedience to those statutes, consid- ering themselves bound thereby in all cases of legal titles and legal demands; and wher- ever the legislature has limited a period for law proceedings, courts of equity will deem themselves equally restricted in anal- ogous cases. Hovenden ■;;. Lord Annesley, 2 Sch. & Lef. 630; Smith v. Clay, Amb. 645. So, with respect to the operation of the statute of limitations upon cases of trusts in equity, the distinction is, if the trust be constituted by act of the parties, the possession of the trustee is the posses- sion of the cestui que trust, and no length of such possession will bar; but if a party is to be constituted a trustee by the decree of a court of equity, founded on fraud, or the like, his possession is adverse, and the statute of limitations will run from the time that the circumstances of the fraud, were discovered. Hollingshead's Case, 1 P. Wms. 742 ; Lockey v. Lockey, Prec. Ch. 518 ; Booth v. Lord Warrington, 1 Bro. P. C. 455; Weston v. Cartwright, Sel. Ch. Cas. 34 ; South Sea Co. v. Wymondsell, 3 P. Wms. 158 ; Bicknell v. Gough, 3 Atk. 538. Every new right of action in equity must be acted upon within twenty years after it accrues. Smith v. Clay, Amb. 645; Floyer v. Lavington, 1 P. Wms. 270 ; De- lorain v. Brown, 3 Bro. C. C. 633 ; Beck' ford V. Close, id. 644; Hercy ti. Dinwoody, i id. 257. §58] EQUITABLE ACTIONS. 137 terms to courts of equ%, it is in all cases, except where relief is sought On the ground of fraud, bound thereby, when the statute has "conferred absolute rights upon a person, or when its jurisdiction over the subject- matter is only concurrent with that of courts of law.* The principal reasons for this analogous application of the statute in courts of equity are, that the evils resulting from great delay in enforcing equitable rights are equally as great as those resulting from delay in enforcing legal rights, and also because, unless courts of equity acted in analogy to these statutes in cases where a party has a choice of forums, the result would be that the effect and real end of the statute would be eluded.^ But in cases where relief is sought upon the ground of fraud 1 Fhalen v. Clark, 19 Conn. 420. This doctrine is adopted in the United States courts, and in those courts it is held that, in all that class of cases in which courts of equity have concurrent jurisdiction with courts of law, they are bound by general statutes of limitation, in the same manner as courts of law, and act in obed- ience to the statute, and not merely in analogy to it. Bank of United States v. .Daniel, 12 Pet. (U. S.) 32; Sherwood v. Sutton, 5 Mas. (U. S.) 143; Tratt v. Northam, id. 95. See also Union Bank of Louisiana v. Stafford, 12 How. (U. S.) 827. The statute is a bar to an equitable right, when at law it would have operated .against a grant. Miller v. Mclntyre, 6 Pet. (U. S.) 61; affirming s. c, 1 McLean XXJ. S. C. C), 85. So, too, they are applied by conrts of equity, in all cases where at law they might be pleaded. Conlson v. ■Walton," 9 Pet. (U. S.) 62. Effect will be given to the statutes of limitations in equity as well as in law, and as well where the origin of the conflicting titles is ad- verse as in other cases. Miller v. Mcln- tyre, 6 Pet. (U. S.) 61. Thus, where an actual adverse possession has continued for twenty years, it constitutes a complete bar in equity, wherever the same pos- session would operate at law to bar an ejectment. A court of equity considers an equitable claim to land as barred, when the right of. entry is lost. The right to file a bill does not continue beyond that time, until the time for bringing a writ of right has passed. Elmendorf v. Taylor, 10 Wheat. (U. S.) 162; Hunt v. Wickliffe, 2 Pet. (U. S.) 201 ; Peyton v. Stith, 5 id. 485 ; Lewis v. Marshall, id. 470 ; Rhode Island V. Massachusetts, 15 id. 233. In obedience to this rule a bill claiming title to, and praying fbr the possession of, lauds will be dismissed, if the complainant and those through whom he claims have taken no steps to assert their rights for thirty years ; the land being all that time in the adverse possession of their defendants and their ancestor. The claim is barred by twenty years' adverse possession. Pindell V. MuUiken, 1 Black (U. S. ), 585. So, too, within the pecuHar jurisdiction of courts of equity, those courts, although not in strictness bound by statutes of limitation, act by analogy to it, and, in a proper case, apply, as an equitable rule, the limitation prescribed by the statute. Sherwood v. Sutton, 5 Mas. (U. S. C. C.) 143 ; Pratt V. Northam, id. 95 ; Baker v. Biddle, Baldw. (U. S. C. C.) 394. See also Union Bank of Louisiana v. Stafford, 12 How. (U. S.) 327. The power conferred by the statute laws of some of the States, upon courts of probate, to direct a sale of the real estate of an intestate for the payment of debts, must be exercised within a rea- sonable time after the death of the intes- tate ; and gross neglect or delay on the part of the creditors for an unreasonahle time ought to be held to be a waiver or extinguishment of it. Although this power is not within the purview of the statute of limitations, it is within its equity; and by analogy to the cases where a limitation has been applied to other rights, the rea- sonable period within which this power may be exercised ought to be limited to the same period which regulates rights of entry. Ricard v. Williams, 7 Wheat. (U. S.) 69. 2 Roosevelt v. Marks, 6 Johns. (N. Y.) Ch. 266; Troup v. Smith, 20 Johns, (N.YO 138 STATUTES OF LIMITATION. [chap. VI. on the part of the defendant, the courts, in a proper case, depart from this rule, and will give relief, unless the plaintiff has been guilty of un- reasonable laches in seeking his remedy in equity.^ In an English case,^ the plaintiff brought a bill in equity to recover a large sum of money which he had been induced to pay to the de- fendant under fraudulent representations from him that he had paid a large sum of money to bring about a marriage between the plaintiff and his wife. The marriage took effect, and the plaintiff, led by the con- tinuous misrepresentations of the defendant, paid to him the money stipulated. Nine years after the money had been paid the original fraud and subsequent management to delude the plaintiff was discov- ered, and then it was ascertained that the defendant not only never had paid, but also that he never was bound to pay, a farthing on account of the marriage. To the bill the defendant set up the statute of limitations, and the questions propounded for argument were : First, whether an action at law could have been maintained to recover dam- ages for the fraud ; second, if it could, at what time did the cause of action accrue ; and, third, whether, supposing the fraud had not been discovered until after the expiration of six j'ears from the accruing of the cause of action, a court of equity, after that time, could give relief.' 33; Elmendorf v. Taylor, 10 Wheat. (U. S.) 152. 1 Erans V. Bacon, 99 Mass. 213. 2 Booth V. ■Warrington, 1 Bro. P. C. 445. 8 This case has heen followed hy nu- merous oases involving the same question. Sherwood v. Sutton, 5 Mas. (U. S.) 143. LoKD Eedbsdale, in the case of Bond v. Hopkins, 1 Sch. & Lef. 429, declared that where a title exists at law and in con- science, and the effectual exertion of it at law is unconscientiously ohstructed, relief should be given in equity. And the same judge, in Hovenden v. Lord Annesley, 2 Sch. & Lef. 634, says, "that the reason why the statutes of limitation in case of the defendant's fraud ought not to prevail in a court of equity, is, that the conscience of the party, being so affected, he ought not to be allowed to avail himself of the length of time." In Cholmondeley v. Clinton, 2 Jac. & W. 141, it was held, that, in case of an equitable estate, "the statute of limitations would be a bar where there has been no fraud; " and in Troup V. Smith's Exrs., 29 Johns. (N. Y.) 47, Spencee, C. J., says, in allusion to the before-mentioned doctrine of Lop.D Eedesdale, "This ia very intelligible and sound doctrine, in a court of equity;'' and that courts of equity are perfectly right in saying "that a party cannot in good conscience avail himself of the stat- ute, when by his own fraud he had pre- vented the other party from coming to a knowledge of his rights. " In the case of Sherwood v. Sutton, 5 Mas. (U. S. ) 143, the same doctrine is very distinctly and fully recognized, and is said to apply as well to oases in which the jurisdiction of courts of law and equity is concun-ent, as to such as are exclusively of equitable cog- nizance. The Supreme Court of the Unit- ed States, in Michoud v. Girod, 4 How. (U. S. ) 561, in discussing this subject, say; " In a case of actual fraud, we believe no case can be found in the books in which a court of equity has refused to give relief in the lifetime of either of the parties upon whom the fraud is proved." The- First Massachusetts Turnpike Co. v. Tidd, 3 Mass. 201, was an early and well-con- sidered case, and has been noticed and approved by many other cases in this country, in which the Chief Justice says : "If this knowledge is fraudulently con- cealed from the plaintiff by the defendant, we should violate a sound principle of law if we permitted the defendant to avail § 58.] EQUITABLE ACTIONS. 139 The court held that the bill, was maintainable upon the ground that courts of equity would relieve a party against the consequences of the defendant's fraud, even though the remedy is barred at law. And now, in many of the statutes, express provision is made in favor of parties in cases where the cause of action has been fraudulently concealed, and even in States where no such exception exists it is held that, even at law, the statute does not begin to run until the fraud is discovered.* Fraud, in order to constitute an exception to the statute, must be the fraud of the party setting it up ; and the statute of limitations relating to executors, &c., if it can be avoided by any fraud, can only be avoided by a fraud of the executors themselves, and not of third persons, with whom they have no privity. And where an administrator who was charged with fraud had deceased, and his sureties were also dead, the legatees must commence their suit against the representatives of the deceased within the three j'ears provided by the statute. It seems that if fraud is to be set up to a bar, of the statute, it must be stated in advance in the bill, so that the fact may be put in issue." In New York, it is expressly proA'ided that the statute shall in all cases apply to courts of equity, where that court has concurrent juris- diction over the subject-matter with courts of law, but not in cases where such courts have exclusive jurisdiction over the subject-matter. In cases where relief is sought on the ground of fraud, the relief must be sought within six years from the time of its discovery ; and if relief is sought in a case involving a trust which is not cognizable by a court of law, it must be brought within ten j^ears after the cause of action accrued, except that, if the party seeking relief was under any of the disabilities provided for in the statute when the cause of action accrued, the period during which such disability existed is not to be reckoned.' The statute of Nevada, which embraces all " civil actions," is held to extend to and embrace equitable as well as legal actions, and courts of equity are held to be bound by the statute in all cases equally with courts of law.' In Indiana, it is held that the statute providing that actions for relief against fraud shall be brought within six j'ears after the cause of action accrued applies as well to suits in equity as to actions at law.^ In New York, the courts held that under the stat- ute referred to a suit in equity must be brought within ten years from the time when the right accrued, in all cases where the proceeding is to enforce a right not cognizable at law ; " and the same rule ap- himself of his own fraud." See also, to the ' See Appendix, New York. same effect, Weller v. Fish, 3 Pick. (Mass.) * White v. Sheldon, 4 Nev. 280. 74; Bishop v. Settle, 3 Me. 405; Homer v. « Pilcher v. Flinn, 30 Ind. 202. Fish, 1 Pick. (Mass.) 435; and Jones v. " White i). Methodist Church, 3 Lans. Conway, 4 Yeates (Penn.), 109, where the (N. Y.)477; Elwai'd i>. Delfendorf, 5 same rule was adopted in actions at law. Barb. (N. Y.) 398 ; Lindsay v. Hyatt, i » See chapter on Fraud. Edw. Ch. (N. Y.) 497 ; Spoor v. Wells, s Pratt V. Northam, 5 Mas. (U. S.) 95. 8 Barb. Ch. (N. Y.) 199. In England, by 140 STATUTES OF LIMITATION. [chap. VI. plies in cases where the jurisdiction is concurrent, but the legal remedy is imperfect or inadequate.' Thus, it has been held that this section of the statute applies to an action to redeem a mortgage by a person hav- ing a right to redeem, but who was not made a party to the foreclosure proceeding,^ to actions for a specific performance of a contract,* to reform a contract,^ to subject land to the payment of the testator's debts,* to redeem stock or other personal property pledged as collateral for a debt,' or indeed to any purely equitable action not involving a question of fraud, in which latter case it comes under the six years' clause, and the code has made no essential change in this respect.' But, as we have observed, independent of anj' express statute to that effect, courts of equity adopt the statutes of limitation and apply them in all proper cases, and wiU refuse relief upon stale demands and claims, even though the statute has not run upon them, except where a reasonable excuse is presented for delay. But when it perceives that the party has equitable rights, and that a court of law might have proved insuflBcient to protect them, it will not in a proper case refuse relief, even though the claim has been long outstanding ; ' and espe- sec. 17 of 3 & 4 Wm. IV. c. 27, a period of forty years Is fixed as the extreme limit within which any proceedings may be taken. Notwithstanding this, a sixty years' title is still necessary, and the rule which requires a vendor to give it, in the absence of conditions to the contrary, re- mains unaltered. " One ground of this rule," remarks Ltndhurst, L. C, "was the duration of human life, and that is not affected by the statute." Cooper o. Em- ery, 1 Phill. C. C. 388. The seventeenth section, just referred to, was decided to be retrospective in Corbyn v. Bramston, 3 Ad. & El. 63. But the question seems not to be free from doubt, as the words are perhaps in strictness prospective and dif- ferent from those in some other sections, the twenty-sixth, for example ; and in the learned note to Nepean v. Loe, in 2 Smith's L. C. 662, it is suggested that the question may be still open. 1 Clarke 1). Boorman, 18 Wall. (U. S.) 493 ; Bundle v. Allison, 34 N. Y. 180 ; Mann v. Fairchild, 14 Barb. (N. Y.) 548. ^ Miner v. Beekman, 50 N. Y. 337 ; Hubbell V. Sibley, 50 id. 468. ' Peters v. Delaplaine, 49 IT. Y. 362. * Oakes®. Howell, 27 How. Pr. (N. Y.) 145. 6 Wood V. Wood. 26 Barb. (N. Y.) 856. 8 Roberts v. Sykes, 30 Barb. (N. Y.) 173. ' In Montgomery ■». Montgomery, 3 Barb. (N. Y. ) Ch. 132, an action to annul a marriage on the ground of fraud was held to be embraced under the six years' clause ; so in Borst v. Corey, 15 N. Y. 505, an action to enforce an equitable lien for the purchase-money of lands, or indeed to any case where fraud is alleged and relied upon. ' Chapman v. Butler, 23 Me. 191. In matters of account, even where they are not barred by statute, courts of equity refuse to interfere after a. considerable lapse of time, from considerations of pub- lic policy and from the difficulty of doing entire justice, when the original transac- tions have become obscure by time, and the evidence may be lost. McKnight v. Tay- lor, 1 How. (U. S.) 161. But mere lapse of time will not defeat equitable relief when time is not essential to the substance of the contract, and the party seeking re- lief has acted fairly, though negligently, unless the delay has been so long as to justify a presumption that he had aban- doned the contract. Getchel v. Jewett, 4 Me. 350. But these statutes, being stat- utes of repose, suspend the remedy, but do not cancel the debt ; and although equally available as a defence at law and §58.] EQUITABLE ACTIONS. 141 ciallj' do thej" make an exception in the case of direct technical trusts, and fraudulent concealment of the cause of action.* Nor will the stat- utory bar be applied in equitj-, so long as an action at law will lie upon the instrument upon which the equitable action is predicated.^ The statute is applied in equity in matters of account/ to actions to remove a cloud upon a title,* to actions to foreclose mortgages/ or title bonds/ or for the specific performance of contracts ; ' and geuerallj^ courts of equity will adopt the statute in analogy to the nature of the claim sought to be enforced, and, as will be seen in the following section, where there is no analogous statute, as where the matter is purely equi- table, the court will refuse relief, if the plaintiff has been guilty of laches in asserting his rights, and a demand will often be regarded as stale^ even though the time which has elapsed is less than the statutory period.' This doctrine is adopted in the United States courts, and it is there in equity, yet where there are two securi- ties for the same debt, one of which is barred by the statute and the other not, the creditor, notwithstanding he has lost his remedy at law on the former, may pur- sue it in equity on the latter. Where the security for a debt is a lien on property, personal or real, that lien is not impaired in consequence of the debt's being barred by the statute of limitations. Therefore, where a debt due from A. to B. was se- cured by a promissory note, made by B. in April, 1817, payable in five years, and by a mortgage of real estate, executed by B. at the same time, but the note was never in fact paid, and B. had no property ex- cept the estate mortgaged, on a bill of foreclosure brought by A. in January, 1835, it was held that he was not barred of his right as mortgagee, and the relief sought was decreed. In such case, the finding of a debt due from B. to A., as the basis of a decree of foreclosure, would not preclude B. from availing himself of the statute of limitations, in a subsequent ac- tion on the note. Belknap v. Gleason,, 11 Conn. 160. 1 McLain v. Ferrell, 1 Swan (Tenn.), 48. 3 McNair v. Eagland, 1 Dev. (N. C.) 533 ; Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 263 ; Wood v. Ford, 29 Miss. 57. 8 Mann v. Fairchild, 3 Abb. (N. Y.) App. Dec. 152 ; Hubbell v. Sibley, 50' N. Y. 468 ; Atwater v. Fowler, 1 Edw. (N. Y.) Oh. 417. * Hodgden v. Gutting, 58 111. 431. ' Cleaveland Ins. Co. u. Reed, 1 Biss. (U. S. C. C.) 180 ; Anderson v. Baxter, 4 Oregon, 105 ; Hall v. Denckler, 28 Aik. 506. 6 Day V. Baldwin, 34 Iowa, 380. The statute has been held applicable in equity in the following instauces : In proceeding to set aside a judgment on account of fraud, Moon v. Baum, 58 Ind. 194 ; an action to enforce a mortgage, Eubanks v. Leveredge, 4 Sawyer (U. S. C. C. ), 274 ; to redeem from a mortgagee, Smith v. Foster, 44 Iowa, 442 ;. to vacate a judgment on the ground of fraud, School District v. Schrei- ner, 46 id. 172 ; to impeach the validity o£ a decree for a divorce a mensa et thoro„ Bourlan v. Waggaman, 28 La. An. 481 ; to annul a mortgage on the gi'ound of fraud, Eenshaw v. Herbert, 29 id. 285 ; to annul a contract on the ground of lesion, Blake- V. Nelson, id. 245 ; to restore a record in a. suit to enforce a contract, Wyatt v. Sut- ton, 10 Heisk. (Tenn. ) 458 ; to reopen an account, Spruill v.' Sanderson, 79 N. C, 466 ; to enforce the liability of stockhold- ers fbr the debts of a corporation, Godfrey V. Terry, 97 17. S. 171 ; or for the division of lands and profits thereof, Harlaw v. Lake Superior Iron Co., 41 Mich. 583 ; or to recover for lands taken under legislative authority, Sommer v. Pacific R. R. Co., 4 Mo. App. 586 ; or to recover in any in- stance where the complainant has or ever had a remedy at law, Cleaveland v. Wil- liamson, 57 Ala. 402. ' Brennan v. Ford, 46 Cal. 7. 8 Spaulding v. Fatwell, 70 Me. 17. 142 STATTTTES OP LIMITATION. [CHAP. VI. held that in all that class of cases in which courts of equity have con- current jurisdiction with the courts of law, they are bound by the gen- eral statutes of limitations in the same manner as courts of law, and act in obedience to the statute, and not merely in analogy to it.^ And it is held that the statute is a bar to the equitable right when at law it would have operated against a grant." So, too, they are applied by courts of equity in all cases where at law thej^ might be pleaded,' and effect is given to the statute of limitations in equity the same as in courts of law, and as well where the origin of the conflicting titles is adverse as in other cases.^ Thus, where an actual adverse possession had continued for twenty years, it was held to constitute a complete bar in equity wherever the same possession would operate at law to bar an ejectment, upon the ground that a court of equity considers an equitable claim to land is barred when the right of entrj' is lost. The right to file a bill does not continue beyond that time, until the time for bringing a writ of right has elapsed.^ In obedience to this rule, a bill claiming title to and praying for the possession of lands will be dismissed if the complainant and those through whom he claims have taken no steps to assert their rights for thirtj' years ; the land being during all that time in the adverse posses- sion of their defendants and their ancestor." In the United States court it is held, that while within the peculiar jurisdiction of the courts of equity, those courts, although not in strict- ness bound by the statute of limitations, act by analogj' to it, and in a proper case apply, as an equitable rule, the limitation prescribed by the statute.' The power conferred bj' the statutes of some of the States upon courts of probate, to direct a sale of the real estate of an intestate for the payment of debts, must be exercised within a reasonable time after the death of the intestate ; and gross neglect or delay on the part of the creditors for an unreasonable time ought to be held to be a waiver or extinguishment of it. Although this power is not within the purview of the statute, it is within its equity ; and by analogy to the cases where a limitation has been applied to other rights, the reasonable period within which this power may be exercised is limited to the same period which regulates rights of entry.' 1 Bank of the United States v. Daniels, v. Marshall, id. 470 ; Rhode Island v. 12 Pet. (U. S.) 32 ; Sherwood v. Sutton, Massachusetts, 15 id. 233. 5 Mas. (TJ. S.) 143 ; Pratt u. Northam, « pindell «. Milliken, 1 Black (U. S.), id, 95. See also Union Bank of Louisiana 585. V. Staflford, 12 How. (U. S.) 327. ' Sherwood v. Sutton, 5 Mas. (U. S. 2 Miller V. Mclntyre, 6 Pet. (U. S.) 61, C. 0.) 143 ; Pratt v. Northara, 5 id. 95 ; affirming s. c. 1 McLean (U.S. CO.), 85. Baker v. Biddle, Baldw. (U. S. C. C.) 3 Coulson V. Walton, 9 Pet. (U. S.) 62. 394. See also Union Bank of Louisiana v. * Miller v. Mclntyre, 6 Pet. (U. S.) 61. Stafford, 12 How. (U. S. ) 327. 5 Elmendorf v. Taylor, 10 Wheat. (U. 8 Ricard v. Williams, 7 Wheat. (U. S.) 152 ; Hunt v. Wickliffe, 2 Pet. (U. S.) 59. S.) 201; Peyton v. Stith, 5 id. 485; Lewis § 58.] EQUITABLE ACTIONS. 143 When a party by his own fraud has prevented the other party from coming to a knowledge of his rights, he cannot, in good conscience, avail himself of the statute ; and if necessary a court of equity will re- lieve the party upon whom the fraud was practised, and this is the case where the jurisdiction of the courts of law and equity are concurrent, as where a court of equity has exclusive jurisdiction.^ In a case in the Supreme Court of the United States,' the court says : " In a case of actual fraud we believe no case can be found in the books in which a court of equity has refused to give relief in the life- time of either of the parties upon whom the fraud is proved." In a Massachusetts case,' the Chief Justice says : " If this knowledge is fraudulently concealed from the plaintiff by the defendant, we should violate a sound principle of law if we permitted the defendant to avail himself of his own fraud." * In England, by the statute of William IV., chapter 27, a period of fortj' j'ears is fixed as the extreme limit within which any proceedings may be taken. Notwithstanding this, a sixty j'cars title is still neces- sary, and the rule which requires a vendor to give it in the absence of conditions to the contrary, remains unaltered. One ground of this rule was the duration of human life, and that is not affected by the statute.' The seventeenth section of the act referred to has been held to be retrospective." But the question seems not to be free from doubt as the words are, perhaps, in strictness, prospective and different from those in some other sections. And in a note to Nepean v. Loe, in 2 Smith's Leading Cases, 662, it is suggested that the question may be still open. In a New York case,' an action to annul a marriage on the ground of fraud was held to be embraced within the six years' clause ; and in a later case, in the same State, ^ an action to enforce an equitable lien for the purchase-money of lands, or, indeed, to any case where fraud is alleged and relied upon, the same rule is adopted. In matters of ac- count, even where they are not barred by statute, courts of equity re- fuse to interfere, after a considerable lapse of time, from considerations of public policy, and from the difQculty of doing entire justice where the original transactions have become obscure by time, and the evi- dence is lost." But mere lapse of time will not defeat equitable relief when time is not essential to the substance of the contract, and the party seeking relief has acted fairly, though negligently, unless the 1 Sherwood U.Sutton, 5 Mas.(IT.S.)143. « Cooper w. Emery, 1 Phill. C. C. 38g. 2 Miohoudw. Girod, 4 How. (U. S.) 561. ' Corbyn v. Bramston, 3 Ad. & El. 63. 8 Turnpike Co. v. Tidd, 3 Mass. 201. ' Montgomeiy v. Montgomery, 3 Barb. * See also, to the same effect, Weller N. Y. Oh. 132. V. Fish, 3 Pick. (Mass.) 74 ; Bishop v. ' Borst v. Corey, 15 N. Y. 505. Settle, 3 Me. 405; Homer v. Fish, 1 Pick. » McKnight w. Taylor, 1 How. (U. S.) (Mass.) 435 ; and Jones v. Conway, 4 161. Yeates (Penn.), 109, where th« same rule was adopted in actions at law. 144 STATUTES OF LIMITATION, [CHAP. Vl. delaj' has been so long as to justify a presumption that he had obtained the contract.* But these statutes, being statutes of repose, suspend the remedy, and do not cancel the debt ; and although equally available as a defence at law and in equity, yet where there are two securities for the same debt, one of which is barred by the statute and the other not, the creditor, notwithstanding he has lost his remedy at law on the former, may pursue it in equity on the latter. Where the security for a debt is a lien on property, personal or real, that lien is not impaired in consequence of the debt being barred by the statute of limitations. Thus, where a debt due from A. to B. was secured by a promissory note, made by B. in April, 1817, payable in five j'ears, and by a mort- gage of real estate, executed by B. at the same time, but the note was never in fact paid, and B. had no property except the estate mortgaged, on a bill of foreclosure brought by A. in January, 1835, it was held that he was not barred of his right as mortgagee, and the relief sought was decreed. In such a ease the finding of a debt due from B. to A. , as a basis of a decree of foreclosure, would not preclude B. from avail- ing himself of the statute of limitations, in a subsequent action on the note.^ The statute has been held applicable in equity in the following in- stances : In proceedings to set aside a judgment on account of fraud ; ^ in an action to enforce a mortgage ; * to redeem from a mortgagee ; ' to vacate a judgment on the ground of fraud; ° to impeach the validity of a decree for a divorce a mensa et thoro ; ' to annul a mortgage on the ground of fraud ; ' to annul a contract on the ground of lesion ; " to restore a record in a suit to enforce a contract ; " to reopen an account ; ^ to enforce the liability of stockholders for the debts of a corporation ; '^'^ for the division of lands and profits thereof;^ or to recover for lands taken under legislative authority ; " or to recover in any instance where the complainant has or ever had a remedy at law.*' Sec. 59. Rule as to purely Equitable Matters. — As to matters of equitable cognizance merely, unless in express terms it is made applicable thereto, the statute does not apply." In other words, the 1 Gretchel v. Jewett, 4 Me. 350. 12 Godfrey «. Terry, 97 U. S. 171. "- Belknap v. Gleason, 11 Conn. 160. >3 Harlow ». Lake Superior Iron Co., 3 Moon 13. Baum, 58 Ind. 194. 41 Mich. 583. ^ Eubauks v. Leveredge, 4 Sawyer (U. i* Sommer v. Pacific R. R. Co., 4 Mo. S. C. C), 274. App. 586. 6 Smith y. Foster, 44 Iowa, 442. w Cleaveland B.WUliamson, 57 Ala. 402. 6 School District w. Schreiner, 46 Iowa, is Marsh v. Oliver, 14 N. J. Eq. 259 ; ^^2. Attorney-General .;. Purmort, 5 Paige ' Bourlanw.Waggaman, 28La. An.481. (N. Y.) Ch. 620; Warner y. Daniels, 1 8 Renshaw v. Herbert, 29 La. An. 285. W. & M. (0. S. C. C. ) 91. The court » Blake V. Nelson, 29 La. An. 245. will not apply the statute of limitations to w Wyatti>. Satton, 10 Heisk. (Teun.), a demand purely of an equitable nature, *^^- Singleton v. Moore, Rice (S. C.) Ch. 110. " SpruiU V. Sanderson, 79 N. C. 466. An action hatred at law, is barred iu equity, §59.] EQUITABLE ACTIONS. 145 statute is not binding on courts of chancery in cases of exclusively equitable cognizance. But the court often refuses to interfere where there have been gross laches or a long or unreasonable acquiescence in the assertion of adverse claims, and adopts, in cases to which the statute does not strictly apply, a period within which its aid must be sought, similar to that prescribed in analogous cases at law.^ But Butter V. Johnson, 111 N. Y. 204 ; Switzer V. Noffsinger, 82 Va. 518 j Metropolitan Natl. Bank v. St. Louis Dispatch Co., 86 Fed. Rep. 322 ; Diefenthaler v. New York, 111 N. Y. 331 ; Humphrey v. Carpenter, (Minn.) 39 N. "W. 67, and courts of ad- miralty are bound to apply the statute where there is nothing exceptional in the case. Southard v. Brady, 36 Fed. Rep. 560 ; Neshit v. The Amboy, 36 Fed. Rep. 925. 1 Askew V. Hooper, 28 Ala. 634. In matters purely equitable, if there is an analogy between it and a remedy at law, the court will generally apply the same limitation. Thus, a grantor's bill alleging that the conveyance was in fact made as a security for money loaned, and charging that the grantee had sold the land for a much greater sum than the indebtedness, and praying an account for the difference, was held to be barred in the same period that an action for a debt would be at law. Hancock v. Harper, 86 111. 445. The statute cannot be pleaded by trustees, in defence of a charge of a breach of trust, or the consequences of neglecting their duty in having sold an estate incumbered, without satisfying that demand. Milnes V. Cowley, 4 Price, 103. In Cholraon- deley v. Clinton, 2 Mer. 173, 357, th& de- fendant's father,couceiving himself entitled in remainder, under the words of a limita- tion, upon the death of the particular ten- ant, had entered into the possession of the equity of redemption of certain estates, which were then in mortgage. On his death defendant entered as heir-at-law, and after twenty-one years' uninterrupted possession in the two, plaintiflF claimed the right of redemption, alleging a want of title in de- fendant's father ; defendant set up the length of time. But Gkant, M. R., held that the statute of limitations could not operate ; that though there was a posses- sion of twenty years, it was not in the character of owner of the legal estate, and VOL. I. — 10 that, without something tantamount to a disseisin, there could be no bar ; that the subsistence of the mortgage in this case rendered the estate an equitable one, and that of an equitable estate there could be no disseisin. On this cause, however, coming on for further directions, Plumer,, M. R. , overruled the former decision, and after reviewing the cases where length of time has been considered a bar in equity, stated the effect of them to be, first, that courts of equity have at all times, upon general principles of their own, even where there was no analogous statutable bar, re- fused relief to stale demands, where the party has slept upon his right, and ac- quiesced for a great length of time ; and, secondly, that whenever a bar has been fixed by statute to the legal remedy in a court of law, the remedy in a court of equity has, in the analogous cases been confined to the same period. He then stated it to be clear, that, had the present, been the claim of a legal estate in a court of law, the remedy would have been barred by the statute of limitations. It was therefore clear, that being an equitable estate, the remedy must, by analogy, be equally barred in a court of equity, s. c. 2 Jao. & Walk. 1, 161. On appeal to the Lords the decree of Plumek, M. R., was. aflSrmed, Lord Eldon stating his opinion to be, that adverse possession of an equity of redemption for twenty years was a bar- to another person claiming the same equity of redemption, and worked the same efi'ect as disseisin, abatement, or intrusion, with respect to legal estate, s. c. id. 191. As to the decisions that a direction by will, tO' pay debts, took away the plea of the- statute of limitations, there is a distinction- between debts on simple contract and bond ; the principle as to the former is, that the debt may have existence and the remedy be taken away, but the bond debt goes upon the presumption of payment. Per Eldon, C, in Ex parte Roffey, 19 Ves. 470. 146 STATUTES OF LIMITATION. [CHAP. VL where tte claim is purely equitable, unless expressly so provided, the statute does not apply thereto, and the lapse of time, however long, will not deprive a party of his remedy thereon if there is a reasonable excuse for the delay ; ■" as the court will not allow a just claim to be de- feated simply because of the lapse of time, if the partj' has not, in view of the circumstances, been guilty of unreasonable delay. ^ Thus, in an Illinois case,' it was held that a bill to foreclose a mortgage will not be barred on the ground of staleness even after the lapse of thirty-five years, when it is shown that the mortgagor has been out of the State most of the time, and had apparently abandoned his equity of redemp- tion, and the mortgagee has constantly asserted his claim by the sale of part of the premises, paying the taxes on the remainder, and other acts of ownership, and no adverse claim had been asserted until about a year before the bill was brought.* In cases where the jurisdiction of equity is concurrent with courts of law, that is, when a right is sought to be enforced in equity for which the party has a remedj' at law, it would operate as a virtual repeal of the statute, if parties by a change of forum could evade its effect ; and for this reason there is much justice in the statement of Catron, J.,^ that courts of equity are no more exempt from these statutes than courts of law.° But this cannot be said to be the case where the rights sought to be enforced are merely matters of equitable jurisdiction, because the ill results likely to ensue in the former case cannot ensue in this, and also because this class of claims cannot be said to be within the spirit or in- tent of these acts, unless expressly embraced therein ; and in such. cases the rights of parties are enforced without reference to the statute, unless from lapse of time and neglect in seeking their enforcement they have T)ecome stale ; ' and the arguments advanced in some of the cases, that as the statute of James was in force when our statutes were enacted, and that the legislatures well understood the manner in which the CQurts 1 Pitzer V. Bums, 7 W. Va. 63 ; Askew » Locke v. Caldwell, 91 111. 417. V. Hooper, 28 Ala. 634 ; Keaton o. Me- * See also Johnson v. Diversey, 82 111. Gwier, 24 Ga. 217 ; Burden v. Stein, 27 446 ; Calwell v. Miles, 2 Del. Ch. 110 ; Ala. 104 ; Union Bank v. Stafford, 12 Preston v. Preston, 95 U. S. 200 ; Neely's How. (U. S.) 327; Wood v. Ford, 29 Appeal, 85 Penn. St. 387. Miss. 57. 6 Bank of United States v. Daniel, 12 2 But in such cases the burden is on Pet. (U. S.) 56. the plaintiff to show a reasonable excuse 6 gee to same effect Piatt v. Vattier, 9 for delay. Pierce u McClellan, 93 111. 245. Pet. (U.S.) 416; Kane i;. Bloodgood, 7 In Cherry v. Lamer, 58 Ga. 641, it was Johns. (N. Y.)Ch. 90; Bowman'!). Wathen, held that where bank-notes have been sued 2 McLean (U. S. C. C), 876; Hakins upon in due time, and judgments thereon v. Barney, 6 Pet. (U. S.) 457 ; Coulton v. recovered, a bill to bring in equitable assets Walters, 4 id. 62; Robinson v. Hook, 4 and subject them to the judgments for Mas. (U. S. C. C.) 139 ; Baker v. Biddle, the satisfaction thereof is not governed by 1 Bald. (U. S. C. C.) 419 ; MQler v. Mo- the periods of limitation that would be Intyre, 6 Pet. (U. S.) 61. applicable if the bank-notes, instead of the ' Lawrence v. Trustees, 2 Den. (N. Y. ) judgment, were the foundation of the bill. 577; Rockwell v. Servant, 64 111. 251. § 59.] EQUITABLE ACTIONS. 147 of equity in England had considered that statute, affords a strong pre- sumption that the legislature intended to bind courts of equitj' by them, as well as courts of law,^ is far-fetched and fallacious, as these statutes are to be consti-ued strictly, being in derogation of vested rights, and are not to be extended by implication to cases or causes of action not fairly embraced within the terms of the language employed ; and it is generally held by our courts that, except in the single case of concur- rent jurisdiction, courts of equity may act in analogy to the statute or not, as the ends of justice and the strict equity of the case seems to re- quire. Indeed, it often occurs that a court of equity refuses relief upon the ground that the party seeking it has slept upon his rights until they have become stale, even though the statute has not run thereon.^ But this is only in rare and exceptional instances, where the party can be said to have acquiesced in the wrong of which he complains, and generally a right will not be regarded as lost by staleness by a period less than that provided for the limitation of analogous cases at law,^ nor even then,* if the delay is reasonably explained.^ In an Illinois case this proposition was well illustrated. In that case the administratrix of a deceased partner filed a bill soon after his death against the surviving partner for an account of the partnership funds. The civil war broke out soon after, and the complainant being a resident of one of the dis- loyal States could not have read}' communication with her counsel, and the defendant, who resided in the county where the suit was pending, did nothing to bring the cause to a hearing, and no steps were taken therein from 1862 to 1869. In the latter year the defendant died, and the complainant revived the suit against his personal represisnta- tives, and from that time up to the fire of October, 1871, in Chicago, the suit was actively prosecuted, and the record had become very vo- luminous, when it was destroyed by that fire. It being found impossible to supply that record, the suit was dismissed, and another suit instituted, being in reality a revival of the former suit, the dismissal having been made to avoid the difficulties arising from the inability of the parties to supply the lost record. The court held that there were no such laches on the part of the complainant as deprived her of a standing in a court of equity.' There are also a class of cases covering another ground 1 Farnam v. Brooks, 9 Pick. (Mass.) Neely's Appeal, 85 Penn. St. 387 ; Preston 242 ; Elmendorf v. Taj'lor, 10 Wheat, v. Preston, 95 IT. S. 200. (U. S.) 168. 5 Johnson v. Diversy, 82 111. 446. 2 Hunt V. Ellison, 32 Ala. 173 ; Ham- ^ In Reed v. West, 47 Tex. 240, it was lin v. Mebane, 1 Jones (N.- C.) Eq. 18 ; held that a court of equity would call on Ferson v. Sanger, 1 Davies (U. S. C. C. ), courts of law during the suspension of the 252 ; Kerby v. Jacobs, 13 B. Mon. (Ky. ) statute by the civil war, and would not, 435 ; Wilson v. Anthony, 19 Ark. 16. except for some equitable reason, hold a 8 Dugan V. Gittings, 3 Gill (Md. ), 138 ; party who had neglected to attempt an en- Eeed v. West, 47 Tex. 240. forcement of his rights during this period ^ Warner v. Daniels, 1 W. & M. (U. S. ) as guilty of such laches as would deprive 90 ; Calwell v. Miles, 2 Del. Ch. 110 ; him of equitable relief. 148 STATUTES OP LIMITATION. [CHAP. VI. that refute the idea that eoui-ts of equity are absolutely bound by the statute of limitations in matters of purelj' equitable cognizance. Thus, in England, it has been held that, where a party applies to a court of equitj- and carries on an unfounded litigation, protracted under circum- stances and for such a length of time as to deprive his adversary- of his legal rights, a court of equitj' will supply a substitute therefor, and ad- minister it within its own jurisdiction so as to effectuate the legal right upon which the statute has run ; ^ and this is hardly consistent with the theory that these courts regard themselves as absolutelj' bound by the statute ; although it is proper to say that the exercise of this power is not favored in courts of equity in this country, and it is hardly believed that, strictlj^, it ever should be exercised, unless the partj- has been en-' joined from bringing an action at law, and the statute makes no provi- sion for saving his rights, in which case a court of equity should, where it can do so, enforce his rights. Sec. 60. Stale Demands. — Courts of equity have always discouraged stale demands, b}' refusing to enforce them, where the person setting it up has lost his moral, if not his legal, right to enforce them ; "^ and the question as to whether a demand is stale or not is one which depends so largely upon the nature of the claim and the peculiar circumstances of each ease, that no general rule can be given that will afford a deci- sive test. The fact that a party has delayed the enforcement of his right for the statutorj' period is 'prima facie suflScient ; but even this is not decisive, as, if there is a suflBcient excuse for delay, the court will en- 1 Pultney v. 'Warreii, 6 Ves. 73 ; Bond 3 Cranch (TJ. S.), 603. In Rogers v. San- V. Hoptins, 2 Sch. & Lef. 630 ; East India ders, 16 Me. 350, it was held that where Co. V. Campion, 11 Bligh, 158 ; Grant v. the binding eiEcacy of a contract has been Grant, 2 Russ. 598. lost by lapse of time, equity will gi-ant ^ Spaulding ■». Farwell, 70 Me. 17 ; relief if time is of the essence of the cou- Dickernian v. Burgess, 20 111. 266 ; Stokes tract. But that where the party a^ing V. Lebanon, &c. Turnpike Co., 6 Humph, performance has been guilty of laches, and (Tenn.) 241 ; Edings v. Whaley, 1 Rich, offers no satisfactory reason for it, and the (S. C.) Eq. 301 ; Marshall a. Means, 12 other party has not waived or acquiesced Ga. 61. A court of equity will not aid in it, no relief can be granted ; nor will it parties who have slept on their rights, be granted where the remedies are not Johnson v. Johnson, 5 Ala. 90 ; Piatt mutual, and where the party not bound V. Vattier, 9 Pet. (U. S.) 405 ; Coleman lies by to see whether it will prove a gain- V. Lyne, 4 Rand. (Va.) 454; Hawley «. ing or losing bargain, and acts accordingly. Cramer, 4 Cow. (N. Y.) 717 ; as where he De Grann v. Mechan (N. J.), 2 Att. has permitted a party to occupy his lands 193. In Stevens v. Union Trust Co., 57 adversely for the statutory period, even Hun (N. Y.), 498, it was held, that so though he did not know the fact, but long as a legal right remains, equity will might have ascertained it by reasonable gi-ant relief unless there has been delay or diligence in looking after his rights. Bow- acquiescence amounting to a recognition man .,. Wathen, 1 How. (U. S.) 189. A of the rights of the adverse party. See demand which has been suffered to lie for also Dunne v. Stottsburg, 26 Pac. Rep. thirty years, during which the principals (Cal.) 333; Brush ti. Manhattan B. E. Co., have died, is regarded as stale, and equity 26 Abb. N, C. (N. Y. ) 73. will not enforce it. Randolph i;. Ware, § 60.] EQUITABLE ACTIONS. 149 force the right.' And, on the other haud, delay for less than the statu- tory period may render the demand stale, within the meaning of the term as employed in equitable parlance.'' In an Enghsh case,^ the court ' Preston v. Preston, 95 U. S. 200; Neeley's Appeal, 85 Penn. St. 387 ; Reed V. West, 47 Tex. 240 ; Kogan ». Walker, 1 Wis. 631 ; Lawrence v. Kokes, 61 Me. 38 ; McKnight v. Taylor, 1 How. (U. S.) 161. Where an executor of a partner de- ceased after a partial settlement with the survivor of the firm lies by for seventeen years and makes no claim until the sur- vivor has deceased, and until much of his evidence lias been lost, it was held that, in the absence of a reasonable excuse for the delay, he could not bring a bill for account against the representative of the deceased. Codman v. Rogers, 10 Pick. (Mass.) 112. See Mitchell v. Lenox, 1 Edw. (N. Y. ) Ch. 428, where an assignee for the benefit of creditors assigned the trust property to other trustees with the assent of the creditors, and the debtor made no objection thereto, an acquiescence of eighteen years was held to preclude him from an equitable remedy. In Atwater V. Fowler, 1 Edw. (N. Y. ) Ch. 417, a part- ner to whom an account had been pre- sented by his co-partner, who retained it for thirteen years without objection, was held to be concluded by his acquiescence from seeking to have the accounts adjusted in equity. In Powell v. Murray, 10 Paige (N. Y.) Ch. 256, It was held, where an agreement for the compromise of doubt- ful claims had been acquiesced in for thirty-eight years, and, those who were competent to explain the transaction were dead, that « party to that agreement who sought to invalidate it must show beyond all question that the agreement was im- properly obtained, and was without con- sideration. 2 Spaulding v. Farwell, ante; Harri- son V. Gibson, 23 Gratt. (Va.) 212. In Lawrence v. Rokes, 61 Me. 38, where a bill in equity was brought to adjust the accounts of a partnership, and it appeared that by the laches of the complainant the respondents had lost their evidence, or were placed in a disadvantageous position, it was held that the court would deal with the remedy as though barred by the stat- ute, although the statute had not in fact run upon the claim. It was also stated that, conversely, where peculiar circum- stances justified delay, relief would be granted although the statute had run upon the claim. In In re Neilley, 95 N. Y. 382, it ap- peared that by the will of his father, A. and others were directed to pay a specified legacy to his sister S. In 1828, A. gave to S., who was then married, « written in- strument by which he acknowledged him- self to have in possession and to hold in trust for her the sum of $268, which was stated to be the balance of the legacy then due her, upon which sum he prom- ised to pay legal interest as long as the same remained in his hands, and to ad- vance to her as required a portion of the principal, it having been agreed, as the instrument stated, between A. and the husband of S., that the money should re- main in the hands of A. in trust for her and for her sole benefit. The husband of S. died in 1840; she died in 1812, leaving a daughter, W., then about thirteen years of age. A. died in 1877. W. in 187S took out letters of administration upon the estate of her mother, and as adminis- tratrix preferred a claim against the estate of A. for the sum stated in said instru- ment, with interest from its date. Held, that the claim was barred by the statute of limitations ; that, as A. was in fact the debtor of S. , he could not change the char- acter of his obligation by his own declara- tion, nor could any agreement on the part of S. constitute him a trustee instead of debtor, as under the law as it then stood she was disabled from making such an en- gagement because of her coverture ; that the agreement, therefore, that the money should remain in trust was made with the husband alone ; it affected only his in- terest in the debt and ceased upon his death, and thereupon S., as creditor by virtue of the original indebtedness, be- came entitled at once to payment, and the » Harcourt v. White, 28 Beav. 303. 150 STATUTES OF LIMITATION. [chap. VL refused relief to a reversion for waste, although the bill was brought two days before the lapse of the statutory period, on the ground that under the circumstances he had been guilty of unreasonable laches. On the other hand, in another case,^ a decree was made thirty-eight statute then began to run. And also that, assuming that S. might have elected to adopt the agreement made by her husband and to treat A. as trustee, this would not change the result, as, when a party has a concurrent remedy in equity and in law, time is an absolute bar in equity as it is iu law. S., from the time of the execution of the paper until her death, resided in the family of A., apparently having no prop- erty. W., also, after the death of her mother, lived in the famUy of A. up to her marriage in 1855. She testified that she found the paper in her mother's trunk after her death; it did not appear that she made any claim by reason of it against A. during her life. Held, that assuming the case was one solely of equitable cognizance and that the statute was not a defence, it was a stale demand which equity would not entertain ; also, that the legal pre- sumption of payment applied. Payne v. Gardiner, 29 N. Y. 146 ; Boughton V. Flint, 74 id. 476 ; Bean u. Tonnele, 94 id. 381, distinguished. ^ Duke of Leeds v. Amherst, 20 Beav. 239. See also Morris v. Morris, 4 Jur. N. s. 964. In Varick v. Edwards, I Hoff. (N". Y.) Ch. 382, it was held to be a gen- eral rule that the lapse of twenty years operates as a bar to a suit in equity con- nected with the recovery of land, and that where a party has resorted to a court of law, where his remedy lay in equity, or vice versa, he cannot be protected against the time so lost. But when time is set up as a conclusive bar, it will only be treated as such when there is an adverse possession ■ and a party setting up a false title under which he is protected in possession cannot set up that possession as a bar to a person who legally has the right. There must be conscience, good faith, and reasonable dili- gence, to call into action the powers of a court of equity. McKnight v. Taylor, 1 How. (IT. S.) 161; Bowman o. Wathen, id. 189 ; Wagner v. Baird, 7 id. 234 ; Maxwell t). Kennedy, S id. 222 ; Ferson a. Sanger, 1 W. & M. (U. S. C. C.) 138 ; s. c. Dav. 252 ; Cleveland Insurance Co. v. Reed, 6 Am. L. K. 406. Equity will not inter- fere in favor of one who has been guilty of gross laches ; a complainant must use legal diligence in the enforcement of his rights. Hollingsworth v. Ftv, i Dall. (U. S.) 347; McKnight v. Taylor, 1 How. (IT. S). Itil; Bowman v. Wathen, id. 189 ; Wagner u. Baird, 7 id. 234 ; West v. Randall, 2 Mas. (U. S. 0. C.) 181 ; Perkins v. Currier, 3 W. & M. (IT. S. C. C.) 70 ; Ferson v. San- ger, Dav. (U. S. C. C.) 252 ; Gordon ». Kerr, 1 Woolw. (IT. S. C. 0.) 322; Long- worth V. Taylor, 1 McLean (U. S. C. C), 395; Lewis v. Baird, 3 id. 57. Thus equity will not give relief to parties claiming under a marriage settlement, who, being under no disability, have slept upon their rights for more than thirty years; especially against executors who have acted in good faith. De Lane v. Moore, 14 How. (U. S.) 253. Even in case of asserted fraud a coui-t of equity will not grant relief if the plaintiff has been guilty of gross laches. Gould u. Gould, 3 Story (U. S.), 516; Veazie v. Williams, 8 How. (U. S.) 134; Hough V. Richardson, 3 Story (U. S.), 660; Fisher u. Boody, 1 Curt. (U. S. C. C.) 206. After the lapse of sufficient time to afford an equitable bar, the court will not grant relief, though the plaintiffs, Ijeing residents of another State, had no actual notice of the infringement of their rights. Bowman u. Wathen, 1 How. {U. S.) 189 ; Wagner v. Baird, 7 id. 234. In Living- ston V. Salisbury Ore Bed, 16 Blatchf. (U. S. C. C.) 549, a bill was brought against a corporation to compel it to issue fifty shares of stock to the complainant. The property interest upon which this .stock was issued was a bed of iron-ore. The complainant claimed under a will made by H., who died in 1872. H, had enjoyed no benefit from the property for fifty years before he died. No demand had ever been made for the stock until made by the complainant in 1874. Other persons had openly enjoyed and claimed title to the fifty shares ever since 1844, and during the whole fifty years H. was in a position §60.] EQUITABLE ACTIONS. 151 years after the waste was committed, Shadwell, V. C, announcing the principle which controls actions for relief in such cases to be " that the author of the mischief is not to complain of the result of it," and he cites Matthew xxvi. 52, and Ovid,^ in support of it. Generallj-, it may be said to be an invariable rule that courts of equitj- will not grant relief to a party who, in view of the circumstances of the case, has been guilty of gross laches, and that parties are required to use reasonable diligence in the enforcement of their rights.^ In a case in the United States Supreme Court,' Fuller, J., says: " The doctrine of laches is based upon thfe grounds of public policy, which requires for the peace of society the discouragement of stale demands. And where the difficulty of doing entire justice by reason of the death of the principal witness or witnesses, or from the original transactions having become obscured by time, is attributable to gross negligence or deliberate delay, a court of equity will not aid a party whose application is thus destitute of conscience, good faith, and rea- sonable diligence." ^ to know that Ms property, if he had any, was claimed by others. The court held that the complainant was precluded from relief on the ground of the laches and acquiescence of H. In an Illinois case, Kellog V. Wilson, 89 111. 357, a bill was brought to set aside an administrator's sale of real estate made eight year.s before, on the ground that the purchaser had been guilty of fraud in procuring persons not to bid against him. Seven years after the bill was iiled, it was amended by setting up as a further ground of relief that the sale was made by an agent in the absence of the administrator. The court held that as to the first ground the court would not set aside a judicial sale in a case where there had been so great a delay, unless a clear case was made out by satisfactory proof, and that, in either case the plaintiff had been guilty of such laches as to dis- entitle him to relief. See also Marshall V. Perry, 90 id. 289. 1 " Neque enim lex aeqnior ulla quam necis artifices arte perire sua. " Ars Amiat. lib. iv. 655. The application of the stat- ute of limitations in courts of equity in England to all analogons matters was made at an early period after such statutes went into eflFect, Beckford v. Wade, 17 Ves. 96 ; Smith v. Clay, 3 Bro. C. C. 30 : Bond V. Hopkins, 1 Sch. & Lef. 413 ; and even before these statutes were enacted these courts refused relief upon stale de- mands, where a party had slept upon his rights so long that their enforcement was likely to operate as a fraud upon the de- fendant, or upon other grounds would be inequitable. Cholmondeley v. Clinton, 2 Jac. & W. 1. But when a party has equitable rights it will not refuse relief, although the claim has been outstanding for a long time, if the reason for delay is such as not to defeat the party's claim to its enforcement upon the ground of laches or acquiescence. Lunn v, Johnson, 3 Ired. (N. G.) Eq. 70; Mason v. Crosby, 1 Davies (U.'S. 0. C), 303; Kimball v. Ives, 17 Vt. 430 ; Bancroft v. Andrews, 6 Cush. (Mass.) 493. 2 Ellison V. Moffat, 1 Johns. Ch. (N. Y.) 46 ; Frost v. Coon, SO N. Y. 428 ; Eay V. Bogart, 2 Johns. Cas. (N. Y.) 432 ; Calhoun's Appeal, 39 Penn. St. 218; Haw- thorn V. Bron.son, 16 S. & R. (Penn.) 269; Halsey v. Tate, 62 Penn. St. 311 ; Cad- wallader's Appeal, 57 id. 158. 8 Mackall v. Ca.silear, 137 U. S. 779. 4 Jenkins v. Pye, 12 Pet. (U. S.) 241; McKnight v. Taylor, 1 How. (U. S.) 161; Godden v. Kinimell, 99 U. S. 201; Lans- dale V. Smith, 106 U. S. 391; Le Gendre V. Byrnes, 44 N. J. Eq. 372; Wilkinsons. Sherman, 45 N. J. Eq. 413; Speidel v. Henrici, 120 U.S. 377; Hanneru Moul- ton, 138 U. S. 486; Cresse v. Myer, 138 U. S. 525; Underwood v. Dugan, 139 U. S. 380; Simmons Creek Coal Co. v. Doran, 142 U. S. 117; Martin v. Gray, 142 id. 230. 152 STATUTES OP LIMITATION. [CHAP. VI. But in New York it lias been held that, where no estoppel or acquies- cence is shown, and the statute of limitations has not run at law, so that a legal remedy exists, a court of equity will not refuse relief on the ground of laches.' In New York, it is held, and we think justly, that so long as the legal right exists the owner is entitled to maintain his action in equity to restrain violations of this right.^ Thus in a case recently decided by the Court of Appeals, ° an action was brought in equitj' to restrain the defendants from further maintain- ing and operating an elevated street railroad on Sixth Avenue In the city of New York, adjacent to the plaintiff's propertj', which consisted of five vacant lots. The defendants commenced and completed the structure of its railroad between the months of January and Jul}', 1878, and from the time of its completion to the commencement of the action in 1889, it had, either by itself or through its lessee, continued to maintain and operate an elevated steam railroad in front of and adjoin- ing the plaintiffs premises. No proceedings were taken by the railroad to acquire the easements of the abutting owners in the avenue, or their consent to its construction. The plaintiff complained that by reason of the operation of such railroad in impairing the easements of light, air, and access to his premises he had been damaged, and demanded judg- ment for such damages, as well as a perpetual injunction against the defendants from further operating and maintaining their railroad in front of his premises. A trial was had at special term, and although 1 Piatt V. Piatt, 58 N. Y. 646. And in The doctrine of stale demands or laches a proper case relief will be granted although does not apply to a legal title. B«ou v. the statute has run, ezcept where the stat- Miller, 11 S. W. (Tex.) 551. Nor is it ute is expressly applied to courts of equity, applicable to a claim under a legal title in Lawrence v. Rokes, 61 Me. 38. A court of an action of trespass to try title. Bullock equity will refuse to interpose to relieve a '»■ Smith, 10 S. W. (Tex.) 678; Montgom- party against an inadvertent omission to ery. v. Noyes, 11 S. W. (Tex. ) 138; I^an- set up a certain defence where he has been iels v. Bridges, 11 S. W. 121. It has no guilty of unreasonable laches. Wilson v. application to a legal title and does not Wilson, 2 Lea (Tenn.), 17; Sargent v. apply to the claims of the true owner of Bigelow, 2i Minn. 370. And in the case land when set up by a person claiihiug un- first cited above, three years' delay was der a tax deed, where the prerequisite held to amount to such laches as precluded steps to make it valid have not been taken, relief. And a delay of six years has been Telfener ii. Dillars, 70 Tex. 189. held to be such laches, unexplained, as ^ Chapman v. Kochester, 110 IST. Y. would justify the court in refusing to per- 273; Tallman v. Metropolitan El. R. E. mit a complainant to file an amended bill Co., 121 N. Y. 123; Arnold v. Hudson setting up matters In existence when the River R. E. Co., 55 N. Y. 661; Uline v. original bill was filed. Marr v. Wilson, N. Y. C. & H. R. R. Co., 101 N. Y. 98; 2 Lea (Tenn.), 229. But a. supplemental Colrick v. Swinburne, 105 N. Y. 503; bill, setting up new matter accruing after N. Y. Rubber Co. v. Rothery, 107 N. Y. the original bill was brought, may be filed 310; Haight v. Price, 21 N. Y. 240; Broi- three years after the original bill was filed, stedt v. South Side R. R. Co., 55 N. Y. although the statute of limitations in such 220; Campbell v. Seaman, 63 N. Y. 568. cases at law runs in two years. Cheek ' Galway v. Metropolitan Elevated R. V. Anderson, 2 Lea (Tenn.), 194. R. Co., 128 N. Y. 132. § 60.] EQUITABLE ACTIONS. 153 the court declined to award pecuniar}- damages to the plaintiff, or render judgment granting relief b}' injunction unless the defendants should pay to the plaintiff, within a limited time, the sum of $20,000 for the depre- ciation of the premises caused by the railway, and upon such demand being made require the plaintiff to execute to the defendants a convey- ance of the easements, it was found that the plaintiff saw the railroad in the course of construction in front of his premises, and from time to time saw what the defendants were doing in respect thereto, and oc- casionally, as a passenger, rode upon it. He made no protest against the construction of the road and instituted no legal proceedings to en- join its construction or operation prior to the commencement of this action, although it appeared that he subscribed money to pay for counsel to prevent the erection of the road. The defendants set up the statute of limitations as a defence, and also claimed that the plain- tiff was estopped from maintaining his action bj^ reason of his acqui- escence in said railroad and its operation, and in his use thereof as a passenger. Euger, C. J., in delivering the opinion of the court sustaining the judgment of the lower court, said : " We think it would be impossible to suspend this appeal without unsettling the established law of the State. It is in effect, an effort to exempt actions in equity from the operation of the well-settled principle that trespassers upon real jDroperty, affected by an unlawful structure or nuisance, are contin- uous in their nature and give successive causes of action from time to time as the injuries are perpetrated. The questions raised are answered bj' elementarj' principles established in this State by numerous reported cases. They are found in the two propositions that continuous injuries to real estate caused by the maintenance of a nuisance or other unlawful structure created separate causes of action, barred only the running of the statute against the successive trespasses, and the further principle that no lapse of time or inaction merely on the part of the plaintiff during the erection and maintenance of such structure, unless it has con- tinued for the length of time necessary to effect a change of title in the property claimed to have been injured, is suflScient to defeat the right of the owner to damages. ... So long as such person continues to be the owner of property and liable to be injured in respect thereto, by the unlawful acts of others, he is entitled to invoke the protection of the fundamental law without regard to the lapse of time that may occur be- fore the commencement of legal proceedings, provided the remedy is claimed within the statutory period of limitation, applicable to his right, or before adverse possession has barred his right to the property injured.* The cause of action, both at law and in equity, in such cases arises out of the trespasses committed, 9,nd is based upon the ownership of the property upon which the injuries are inflicted ; and it is obvious that no cause of action can be barred while there is an outstanding legal 1 mine V. N. Y. Cent. &H. E. E. Co., burne, 105 N. Y. 503; Coleman v. Metro- 101 N. Y. 98; Arnold v. Hudson River politan El. E. E. Co., 121 N. Y. 123. K. B. Co., 55 N. Y. 661; Colriok v. Swin- 154 STATUTES OF LIMITATION. [CHAP. VI. cause of action for which the party has a legal remedj-. The existence of a legal cause of action is not onl3' a prerequisite to the maintenance of the equitable action, but is also the foundation of the jurisdiction which equity courts possess in reference to the subject-matter. . . . That theory is concisely expressed by Judge Eable in the case of Tall- man, supra. It was there said that when the defendant begins to construct its railway in front of the plaintiflTs lots he could have com- menced an action in equity against it, and restrained it until it had made compensation to him for the rights and easements which it took from him, or until it had acquired them by condemnation proceedings. In that way he would, at least in the theory of the law, have been indem- nified for all the damage he would suflTer by reason of the construction of the railway. Instead of taking his remedy by an equitable action at that time, he could have taken it at any time afterwards during his ownership of the lots with the same result. He was not, however, con- fined to his remedy by such an action. He could suffer the railway to be constructed, and then bring successive actions to recover damages to his lots caused by the construction, maintenance, and operation of the railway. . . . In as much as the equitable remedy depends upon other things than upon the existence of a legal cause of action, it follows that those facts which will bar the legal action will also afford an answer to the equitable remedy, and that so long as a legal remedy exists, an equity court is open to aid in the enforcement of the legal claim. Where the trespass is of such a character that it maj' be discontinued at the opera- tion of the wrong-doer, or, if continued, is susceptible of having legal sanction obtained for its continuance, it seems to our sense of right, that a wrong-doer should not be permitted to repeat his unlawful con- duct, and should deprive the owner of any of the remedies which the law has provided for his protection. If it were otherwise the wrong- doer would be permitted to show the aggravated character of his own conduct as a defence to the action of the legal owner, and thus violate the rule of law as well as the plainest principles of equity. . . . The right to an injunction in a proper case in England and most of the States is just as fixed and certain as the right to any other provisional remedj'. The writ can rightfully be demanded to prevent an irreparable injury, in- ternal litigation, and a multiplicity of suits, and its refusal in a proper case would be error to be corrected by a proper tribunal. . . . The law makes no distinction in the character of the injury, but prescribes one uniform principle for redress, without regard to the nature of the remedy pursued.' Delay, amounting even to apparent negligence, may be explained, and under special circumstances, as where there is difficulty about the title, it does not amount to a bar to relief in equity.'' So the lapse 1 Krehl v. Burrell, L. R. 11 Ch. D. 2 King v. Morford, 1 N. J. Eq. 274 146 ; Henderson's Case, 78 N. Y. 423 ; Nelson v. Carrington, 4 Munf. (Va.) 332 Baldwin v. Caulkins, 10 Wend. (N. Y.) Aylett v. King, 11 Leigh (Va.), 486 170 ; WiUiams v. N. Y. Cent. E. K. Co., Baker v. Morris, 10 id. 284 ; Glenn u.'Hebb, 16 N. Y. 111. 12 G. & J. (Md.) 271. A surety who, six § 60.] EQUITABLE ACTIONS. 155 of twelve j-ears without the paj'raent of interest on a mortgage bond has been held not sufficient to bring it under the head of a stale de- mand.^ But generally, except where the explanatiotf of the delay is reasonable, a claim in equity must be exhibited within such a reason- able time that the court may do no injustice to the defendant; and where a bill was brought to recover a balance claimed to be due, and which could only be determined by an examination of accounts more than twenty-seven years old, the court dismissed the bill on the ground that the demand was stale.^ So where a bill was brought against the representative of a deceased treasurer of a legally established lottery, to recover a balance of funds claimed to be in his possession at the time of his decease, and it appeared that the lottery was established in 1802, and that most of the funds had been expended by 1809, and that the treasurer died in 1817, and the bill was not brought until 1830, the court held that the demand was stale, and dismissed the bill.' Upon the question of estoppel by acquiescence the court adopted the rule laid down in the former case before that court,^ where it was held that the doctrine of laches and acquiescence as a bar to an action through lapse of time is onl^' applicable to equitable rights, and that as to legal rights, mere lapse of time before an action to enforce them is barred, is of no moment. Also that the silence and inaction of the plaintiff, while seeing the defendant committing the acts complained of, and spending large sums of money in completing them, constitutes no defence to an action for an injunction, no matter how long continued unless accompanied by circumstances amounting to an estoppel.' But, as years after the death of his co-surety, paid no acquiescence short of twenty years re- the debt, and nearly two years afterwards pels the presumption that the diversion of demanded contribution of the adniinis- a water-course was in hostility to the rights trator of his co-surety, it was held that' of the riparian proprietors, or authorizes his claim was not barred, as the adminis- the presumption either of a grant or of trator had made no payments during that license." Judge Earle, in the Campbell time except to himself, so that no injury case, said : " It is claimed that the plain- could result to the estate from the delay, tiffs so far acquiesced in this nuisance as Burrows v. M'Whann, 1 Desau. (S. C.) 409. to bar them from equitable relief. I do So where a judgment creditor allowed the not perceive how any acquiescence short judgmenttoliedormant for ten years, and of twenty years can bar one from com- then revived it by scire faeias, it was held plaining of a nuisance, unless his conduct that lapse of time was no bar to a bill filed has been such as to estop him. ... No by the judgment debtor for relief against act or omission of theirs induced the de- the judgment. Hill v. Jones, 2 Dev. fendant to incur large expenses, or to take (N. C.)Ch. 101. See also Lewis u. Brooks, any action which could be the basis of an 6 Yerg. (Tenn.) 167. estoppel against them, and therefore there 1 Kirma v. Smith, 3 N. J. Eq. 14. was no acquiescence or laches which should 2 Atkinson v. Eobinson, 9 Leigh (Va.), bar the plaintiffs within any rule laid 893. down in any reported case. In Viele v. ' Carruthers v. Trustees of Lexington, Judson, Judok Finch, in speaking nf the 12 Leittli (Va.), 616. cases where acquiescence had been held a * Ormsby v. Vt. Mining Co., 56 N. Y. bar, says: " In all of these the silence 623. . operated as a fraud, and actually itself * It was held, in Haight v. Price, " that misled. In all, there was both the specific 156 STATUTES OP LIMITATION. [chap. VI. previously stated, where there is a reasonable excuse for delaj-, length of time does not defeat equitable relief. Thus, where a wife married opportunity and apparent duty to speak, and in all, the party maiutaiuing silence knew that some one was relying upon that silence, and either acting or about to act as he would uot have done had the truth beeu told." It was held in the Broiestedt Case that the possession by a railroad com- pany of a highway, under a license given by statute, is presumed to be subordinate to the rights of the owner of the soil, and cannot be said to be adverse to him. In New York Rubber Co. v. Rothery, the de- fendant had huilt expensive structures for manufacturing purposes, and diverted the water from a stream adjoining plaintiff's premises for the purpose of supplying power to his machinery. It was claimed that the plaintiff, by her silence during the period when this work was going on, was harred of her action for damages. Judge Peck- ham, writing in the case, says; " In this there was no element of an estoppel. To constitute it, the person sought to be es- topped must do some act, or make some admission, with an intention of influenc- ing the conduct of another, or that he had reason to believe would influence his con- duct, and which act or omission is incon- sistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct." See also McMurray v. Mc- Murray, 66 N. Y. 176. But we have already referred to a suffi- cient numher of cases in this court to show how uniformly and frequently we have ad- hered to the doctrine, where a legal right is involved, and upon grounds of equity jurisdiction, the courts have been called upon to sustain the legal right, that the mere laches of a party, unaccompanied by circumstances amounting to an estoppel, constitutes no defence to such an action. Such is also the doctrine, generally, of the elementary writers. 2 Pom. Eq. Jur., Sec. 817 ; Bigelow, Estoppel, p. 476 et seq. The same general principle has also been helil in England. In the case of Fullwood V. Fullwood, L. R. 9 Ch. D. 176, Fkt, J., says that "mere lapse of time unaccom- panied by anything else, has, in my judg- ment, just as much effect and no more, in barring a suit for an injunction, as it has in barring an action for deceit." And the head-note in Be Maddever, L. R. 27 Ch. D. 523, reads: "That, as the plaintiff was coming to enforce a legal right, his mere delay to take proceedings was no de- fence, as it had not continued long enough to bar his legal rights; the case standing on a different footing from a suit to set aside, on equitable grounds, a deed which was valid at law." The Supreme Court of the United States has also laid down the same rule in the recent case of Menen- dez V. Holt, 128 U. S. 523, 32 L. ed. 528, where Chief Justice Fullee, writing for the court, says; "Mere delays or acqui- escence cannot defeat the remedy by in- junction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself. Hence, upon an application to stay waste, relief will not be refused on the ground that, as the defendant had been allowed to cut down half the trees upon the complainant's land, he had ac-^ quired, by that negligence, the right to cut down the remainder. Atty.-Gen. v. Eastlake, 11 Hare, 205." Even in a case where laches has been allowed to operate as a defence, the ques- tion is to be determined in the discretion of the court, upon all of the circumstances 'of the case. Fullwood v. Fullwood, supra. " The rule requiring promptness in sol^f citing the intervention of a court of equity is always addressed to the discre- tion of the court, and varies much accord- ing to the situation of the parties, the nature of the relief demanded, and the circumstances of the case. Calhoun v. Millard, 121 N. Y. 82, 8 L. R. A. 248 ; Fullwood V. Fullwood, supra; Rayner v. Pearsall, 3 Johns. Ch. (N. Y.) 578, 1 L. ed. 723 ; Atwater v. Fowler, 1 Edw. Ch. (N. Y.) 420, 6 L.ed. 194. What might be considered an unjustifiable delay in one case would be considered reasonable in another, and an equity court which should refuse its aid to a party in protecting a legal right, without a valid and sufficient reason, would be subject to the criticism of shutting the doors of the temple of jus- tice in the face of meritorious suitors, and condemning them to suffer remediless §60.] EQUITABLE ACTIONS. 157 her husband in her infancj-, but immediately on his death asserted her rights by suit, the court held that, although the bill was not brought until thirty-flve years after the cause of her complaint accrued, her demand was not stale.^ Lapse of time, in equity, is permitted to de- wrongs. The fact that the defendants in- tended to make their structure permanent, or made it so in fact, constitutes no de- fence to the action. Krehl v. Burrell, L. R. 7 Ch. D. 551, on appeal, L. E. 11 Ch. D. 146." The importance of the opinion of Rugee, C. J., is .such, and his consideration of the questions involved is so thorough and ex- haustive, that I give it entire so far as it depends upon questions of importance to the profession outside of the State of New York. 1 Tate V. Greenlee, 2 Hawks (N. C), 486. See also Falls i». Torrence, id. 490. Balkham v. Woodstock Iron Co., 43 Fed. Rep. 648, it was held, that one who holds lands under a bad or defective legal title, but with an equitable right to the property, is not guilty of laches for delay in going into a court of equity to perfect his title. Balkham v, Woodstock Iron Co., 43 Fed. Rep. 648 ; Parker v. Shan- non, 27 N. E. (111.) 525 ; CoflFee v. Emigh, 15 Col. 184 ; White v. Patterson, 139 Penn. 429. A person who, without right, enters and occupies the land of another, cannot claim, by reason of anything he does upon it, and the owner's delay to oust him for a less Ibime than the statutory period of limita- tion, estops the owner from seeking a rem- edy against him. Wayzata v. Great North- ern R. Co., 49 N. W. (Minn.) 205. A suit to set aside the defendants' title to land, and establish title in the plaintiffs, brought twenty-five years after the wrong- ful transfer complained of, and twenty years after knowledge of the wrong by the party under whom the plaintiffs claim, when the parties to such transfer are dead, and the land has increased in value, and the defendants, who have occupied the land, were not parties to or cognizant of the wrong, — is barred on the ground of laches. IJnderwood v. Dagan, 139 U. S. 380. An unexplained delay of a year and a half in bringing an action to set aside an auction sale of lands on the ground of fraud and collusion to prevent competition in bidding, is unreasonable and fatal to the action, although plaintiff avers that he had no knowledge of the fraud at the time of the sale. Hammond v. Wallace, 85 Cal. 622. One who has waited until the claims for the payment of which his an- cestor's real estate was sold, have become barred by the statute of limitations, and refuses to state when he became informed of irregularities upon the sale of the prop- erty to pay them, cannot maintain a suit in equity to set aside such sale. Murphy v. De France, 15 S. W. (Mo.) 949, affirmed on rehearing in 16 S. W. 861. A suit to set aside the sale of a land certificate, brought nearly thirteen years — more than the longest State period of lim- itation — after the sale, where the value of the land located thereunder has largely increased, and parties interested and wit- nesses have died, and no person now in- terested in the land is implicated in the fraud alleged as the ground of relief, is barred on account of laches. Hanner v. Moulton, 138 U. S. 486. Delay by the complainant in the en- forcement of remedies, involving a lapse of time during which conditions have been changed that cannot be reinstated, money has been expended jn improvement of prop- erty, parties and witnesses have died, and indemnity has been imperilled or lost, is ground on which a cour^of equity will withhold relief. De Grauw v. Mechan, 20 Atl. (N. J.) 193. Equity will not, after the statute of limitations has run against an action at law for contribution, relieve an heir who paid mortgages on the entire property without taking an assignment thereof and suing the co-heirs for contribution. Row- den V. Murphy, 20 Atl.(N. J.) 379. In Missouri, the statute which bars ac- tions at law, bars also proceedings in equity, except those which the statute expressly excepts ; and courts cannot extend those exceptions so as to embrace cases not within the specific exceptions enumerated in the statute itself. Hoeater v. Sammel- mann, 101 Mo. 619. In Bushnell v. Bushnell, 77 Wis. 436* 158 STATUTES OP LIMITATION. [chap. VI. feat an acknowledged right only on the ground of raising a presump- Where the object of the suit is to what could be done at law, — as, recover pos- session of real estate, and the plaintiff is guilty of the laches which a court of equity regards equivalent to the statute of lim- itations, such unexplained delay is- a bar to 'the suit. Norris v. Haggin, 136 U. S. 386. But where the subject-matter of a con- troversy is the right to unpatented mining property, the uncertain and fluctuating character of the property will be consid- ered in determining the question of laches. Great West Min. Co. v. Woodmans of Alston Min. Co., 23 Pac. (Col.) 908. The doctrine of stale demands applies even where a trust be involved. Sanchez V. Dow, 23 Fla. 445. The general rule in respect to express trusts, that where the trust relation has been repudiated, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance, a court of equity will re- fuse relief on the ground of lapse of time, applies with greater force to a resulting trust. De Mares v. Gilpin, 24 Pac. (Col.) 568. As a rule cases of trust constitute an exception to the rule as to laches only so long as the relation continues. Clark v. Clough, 65 N. H. 43. Upon a patent being issued to a head- right claimant of lands, he is invested with the legal title in trust and for the benefit of one to whom he has previously conveyed the lands ; and where the grantor has done nothing to repudiate the trust, the doctrine of laches or stale claim does not apply. Eobertson v. Du Bose, 76 Tex. 1. Where property held in trust for one for life with remainder to others, is sold in a. proceeding to which the trustee and the life tenaut are parties, the remaindermen have no right to raise any objection until the death of the life tenant. Therefore their failure to object before that time will not debar them from relief on the ground of laches. Covar v. Cantelou, 25 S. C. 35. The general government may be barred from maintaining a suit on account of laches, where it would be inequitable as between man and man, in their dealing with each other, to permit the suit. United States v. Dalles Military Koad Co., it was held, that an action by a surety who has paid more thap his proportion of tlie debt, against his co-surety for con- tribution, is an action at law and governed by the statute of limitations applicable to such actions, and is not brought within the statute applicable to equitable actions by the fact that an equitable action may be maintained for contribution in a proper case. The doctrine of laches is based upon gi-ounds of public policy, which requires for the peace of society the discourage- ment of stale demands ; and the mere as- sertion of a claim, unaccompanied by any act to give effect to it, cannot avail to keep alive a right which would otherwise be precluded. Mackall v. Casilear, 137 U. S. 556. Where the difficulty of doing entire justice by reason of the death of the prin- cipal witnesses, or because the original transactions have become obscured by time, is attributable to gross negligence or deliberate delay, a court of equity will not aid a party whose application is thus des- titute of conscience, good faith, and rea- sonable diligence. In determining the staleness of a claim or its equity, the court is not confined to the statutory period of limitation, but may refuse relief where the delay is less or greater than the statutory period. Nep- pach V. Jones, 26 Pac. (Oreg.) 569, 849. Length of time alone is not the test of the staleness of a demand, but the ques- tion must be determined by the facts and circumstances of each case and according to right and justice. Id. ; Marcotte v. Hartraan, 48 N. Y. (Minn.) 767. Parties ignorant of their rights cannot be charged with laches. Hannon v. Hou- nihan, 85 Va. 429. Laches is not attributable to an infant, the law assuming that he was ignorant of his rights during his minority. Putnam V. Tipkler, 83 Mich. 628 ; Spencer v. Jen- nins^s, 139 Penn. 198. The equitable principle of refusing re- lief upon stale claims may apply to a pro- ceeding in equity against directors of a national bank, although there is no statu- tory provision which would apply to an action at law in such a case. Welles v. Graves, 41 Fed. Eep. 459. §60.] EQUITABLE ACTIONS. 159 tiou that the right has been abandoned, and this presumption will never prevail against opposing facts and circumstances outweighing it.^ Where the existence of a trust has been fraudulentlj- concealed for thirty-six years, a delay of six months before beginning a suit after the discovery of the fraud, was held not to amount to laches which would prevent a court of equity from giving relief." Nor generally will relief be refused on the ground of laches, where the party had no knowledge of the existence of the fact that the trustee was disposed to deny the trust relation, and claim adversely,^ provided the facts entitled them to relief. But relief will be denied where the facts could have been dis- covered by the exercise of reasonable diligence : Thus, a delay for many j'ears on the part of the stockholders and officers of a lessee railroad 41 Fed. Eep. 493. In a case in the cir- cuit court, it wa3 held, that a claim of the United States to forfeit a grant of lands for non-performance of conditions, is de- feated as a stale claim by the lapse of eighteen years after the time for perform- ance before the commencement of suit. United States v. Wallamet V. & C. M. "Wagon Eoad Co., 42 Fed. Rep. 361. But in Redaeld v. Parks, 132 U. S. 289, when a contrary doctrine is held, the defence of stale claims is not available to persons in possession of lands without title. Baker V. McFarland, 77 Tex. 294. The maker of a trust deed is barred by laches from maintaining a suit to reform it forty years after it was made, and nearly thirteen years after realizing its character, during which time all the parties con- cerned were growing old, and she knew the testimony to support it or impeach it must soon be lost. "Van Houten v. "Van "Winkle, 20 Atl. (N. J.) 34. So in a case of fraud upon the part of an administrator, in which each of the defendants partici- pated, a court of equity should be slow in denying relief upon the mere ground of laches in bringing suit, Bryan v. Kales, 134 U. S. 126. Since an action to enforce as a lien on Ifind in the hands of a third person a note given for the purchase price thereof, is not barred until after the expiration of fifteen years, plaintift's failure to sue until after thirteen years from the maturity of the note and the time it was assigned to him, during which time the maker was solvent, does not preclude a recovery on the ground of laches. Lucy «. Hopkins, 11 Ky. L. Kep. 907, 13 S. "W. 518. " In the absence of an express contract or charter providing that the seat of a col- lege shall not be removed, the validity of a statute authorizing a removal cannot be attacked after an acquiescence of twenty- five years, on the ground that it impairs the obligations of a contract. Bryan v. Board of Education, 12 Ky. L. Rep. 12. Five years' delay in bringing a suit to cancel a deed, which is then allowed to drag for two years, and is then dismissed, followed by ten years of absolute inaction, during which time the property has doubled or perhaps quadrupled in value, is a bar to a second suit. Henry t'. Suttle, 42 Fed. Eep. 91. A person cannot avoid a deed on the ground that it was executed under duress while he was under arrest for larceny, whore he neglects to bring the suit for nearly three years and until after the pros- ecution against him for larceny is barred, during which time the property is sold to innocent purchasers, unless the delay is satisfactorily explained. Eberstein v. "Wil- lets, (111.) 24 N. E. 967. A minor is not chargeable with laches for neglecting to bring suit during minor- ity for personal injuries resulting from negligence. Thurston v. Luce, 61 Mich. 292. 1 Nelson v. Carrington, 4 Munf. ("Va, ) 332; Renrdoni'. Leary, 1 Litt. (Ky.) 53 ; Burkhead v. Coulson, 2 D. & B. (N. C.) Ch. 77. The poverty of the plaintiff is not an excuse for delay. Locke v. Arm- strong, id. 147 ; Perry v. Craig, 3 Mo. 316. But see Mason v. Crosby, 1 '\A^ & M, (U.S. C. C.)841. 2 Middauh v. Fox, 135 111. 344. > Eoby V. Colehour, 135111. 300. 160 ^ STATUTES OF LTSTITATIOJT. [CHAP. VI. company in objecting that its officers acted in bad faith in taking the lease at an excessive rent, was held not to be excusable on the ground that the amount was of no consequence to them so long as an assignee of the lease for a part of the term paid it as he had agreed.* A surety is not guilty of laches in instituting a suit to have a bond cancelled or reformed which, by mutual mistake, made him personally liable for the amount of a judgment, until an attempt is made to hold him personally liable for the amount of the judgment on the bond.^ In a Vermont case,' it was held that the right to enforce an obliga- tion for a life support is not barred by the mere neglect for any length of time to take the benefit of the provision. So where the pledgee of property had been guilty of a breach of trust, and held the property, which had largely increased in value, and the pledgor had previously instituted a suit to redeem, which was decided against him, it was held that a delay of more than five j-ears in bringing an action to redeem the pledged property was not such laches as would deprive him of equitable relief.* Where a party has been unreasonablj' dilatory or negligent in enforc- ing his rights, and shows no excuse for such laches in asserting them, courts of equity uniformlj' decline to assist him in their enforcement. In an English case in which the doctrine of laches was carefully con- sidered,' LoED Camden, in delivering the opinion of the court, said : " A court of equity has alwaj's refused its aid to stale demands where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting the court is pas- sive and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court.' And where the appeal upon its face shows that the plaintiff is not entitled to relief by reason of lapse of time and of his own laches, the objection may be taken by demurrer.'" It has been a recognized doctrine of courts of equity to withhold re- lief in all cases where the party seeking it has delayed for an unrea- sonable length of time in asserting his claim, and the proper rule of pleading would seem to be, that when the case stated by the bill ap- 1 Jessup V. Illinois, &o. E. R. Co., 43 * Smith v. Clay, 3 Bro. Ch. 640, n. Fed. Rep. 483; see also Van Vleet i>. « Humeii. Beale, 17 Wall. (IT, S.) 336; Sledge, 45 Fed. Rep. 743, where it was Knight v. Taylor, 1 How. (U. S.) 161; held, that reformation of an entry in liookg Bowman «. Wathen, 1 id. 189; Marsh v. of account will not be decreed on a hill Whitmore, 21 Wall. (U. S.) 178; Sullivan filed nine years after the transaction where ". R- R- Co., 84 U.S. 806; Godden v. the complainant could have known, and Kimmell, 99 U. S. 201; Bright v. Leger- was presumed to have known, of the entry, ton, 29 Beav. 60; Badger v. Badger, 2 and no explanation is given for the delay. Wall. 87. 2 Griswold u. Hazard, 141 U. S. 260. ' Lansdale v. Smith, 106 V. S. 391; 3 Coleman v. Whitney, 62 Vt. 123. Bank v. Cai-penter, 101 U. S. 567; Max- * Gilmer i-. Morris, 43 Fed. Rep. 456. well v. Kennedy, 8 How. 210. §60.] EQUITABLE ACTIONS, 161 pears to be one in which a court of equity will refuse its aid, the defend- ant should be permitted to resist it by demurrer.^ Sec. 61. Effect of Acquiescence. — Courts of equitj' will also refuse to grant relief where a person has acquiesced in the exercise of a right by another, under such circumstances that he cannot equitablj' dispute the right, although his acquiescence has not existed for the statutory period. Lord Eldon " gives expression to the rale in such cases thus : 1 Harlan, J., in Lansdale v. Smith, am,te. Note 1, page 124. ^ Dann o. Spurrier, 7 Ves. 231. The delay of a party, apprised of his right, and of its infringement, to assert it, for a period sufficient to bar an action at lavr, founded on the same right, will preclude him from relief in equity, especially if by Buch delay he has avoided a risk which otherwise he must have shared with the adverse party. Therefore, where a cor- poration for manufacturing purposes, being greatly embarrassed, in 1818, voted to sell, and in fact sold, its property to relieve itself from such embaiTassment, but the sale, though without actual fraud, was so made as not to be valid, the plaintiff, a stockholder of the corporation, apprised of what had taken place, and informed that he might be admitted into a new associa- tion, embracing most of the members of the corporation, and possessing its prop- erty, under such sale, upon the same terms as they had been ; after this, the plaintiff made no claim until 1826, and brought no suit until 1828, when he sought relief by a bill in chancery, it was held that he had outstaid his time ; and the bill was dis- missed, but without costs. Banks tf. Judah, 8 Conn. 145. Where a party has been guilty of un- reasonable laches and acquiescence in seeking relief in a court of equity, he is precluded from any remedy in that juris- diction. Smith V. Clay, 2 Ambl., 645 ; Calhoun v. Millard, 121 N. Y. 69 ; Lyon V. Park, 111 N. Y. 350 ; Coit v. Campbell, 82 N. Y. 509 ; Alvord v. Syracuse Savings Bank, 98 N. Y. 599 ; Andrews v. Farmers L. & T. Co., 22 Wis. 298 ; Meredith v. Sayre, 32 N. J. Eq., 657 ; Atty.-Gen. v. Del. & B. B. R. Co., 27 id. 1 ; Atty.- Gen. II. N. Y. & L. B. E. Co., 24 id. 49 ; Freemont Ferry w. Dodge Co.Com'rs,6 Neb. 18 ; Abendroth o. Manhattan R. Co., 122 N. Y. 1 ; Hentz «. Long Island E. Co., 13 VOL. I. — 11 Barb. 655 ; Ninth Ave. R. R. Co. v. New York El. R. Co., 3 Abb. N. C. (N. Y.) 358 ; Kinoaid v. Indianapolis Nat. Gas Co., 124 Ind. 577 ; Western Union Tel. Co. V. J-udkins, 75 Ala. 428 ; Midland E. Co. V. Smith, 113 Ind. 233 ; Greenhalgh V. Manchester & B. E. Co., 3 Myl. & C. 784 ; Wood v. Charing Cross R. Co., 33 Beav. 290 ; Bigelow v. Los Angelos, 85 Cal. 614 ; Pottsgrove Twp. v. Pennsyl- vania & S. V. E. Co., 2 Montg. Co., L. Rep. 133 ; Pennsylvania Co. v. Piatt, 47 Ohio St. 366 ; Pensaopla & A. E. Co. v. Hackson, 21 Fla, 146 ; Logansport v. Uhl, 99 Ind. 531 j Goodwin v. Cincinnati & W. W. Canal Co., 18 Ohio St. 169 ; Meredith V. Sayre, 32 N. J. Eq., 557 ; Traphagen v. Jersey City, 29 id. 206 ; Pickert v. Eidge- field Park E. Co., 25 id. 316 ; Erie R. R. Co. V. Del. L. & W. E. Co., 21 id. 283 ; Morris & E. R. Co. v. Prudden, 20 id. 630 ; Baltimore & 0. R. R. Co. v. Strauss, 37 Md. 237 ; Spencer v. Falls Tump. R. Co., 70 id. 136 ; Bassett v. Salisbury Mfg. Co., 47 N. H. 426 ; Osborne v. Mo. Pao. E. E. Co., 37 Fed. Rep. 830. But in New York, it is held, that a mere failure to institute proceedings to restrain or pre- vent the construction or continued oper- ation of a railroad, cannot deprive an owner of the constitutional right to recover compensation for the taking of his prop' erty, and to enjoin the continuance of the wrongful act until such compensation shall be made unless the legal right is barred by the statute of limitations, or the de- fendant has in some legal manner acquired a title to the property taken, or unless the owner has by his acquiescence become estopped from asserting his claim. Knox t>. Manhattan El. R. R. Co., 68 Hun (N. Y.), 517 ; Abendroth v. Manhattan El. R. R. Co., 122 N. Y. 1 ; Ode ». Manhattan El. E. R. Co., 56 Hun (N. Y.), 199 ; MoMurray v. McMurray, 66 N. Y. 176 ; Powers V. Manhattan El. R. R. Co., 120 162 STATtTTES OF LIMITATION. [chap. VI. " Tbis court," saj-s he, " will not permit a man knowingly-, though but passively, to encourage another to lay out money under an erroneous opinion of title ; and the circumstance of looking on is in many cases as strong as using terms of encouragement, a lessor knowing and per- mitting those acts which the lessee would not have done, and the other must conceive he would not have done, but upon an expectation that the lessor would not throw any objection in the way of his enjoyment." ^ In another ease,^ Lord Cottenham said : " If a party having a right stands by and sees another dealing with the property in a manner in- consistent with that right, and makes no objection while the right is in progress, he cannot [afterwards complain. This," says he, " is the proper sense of the word ' acquiescence.' " But a person who has not complete knowledge of the facts cannot be said to acquiesce.* " I do not see," says Tdknbk, L. J.,* "how a man can be said to have ac- principle applicable when action is taken on the strength of encouragement to do it, but so far as the act is in progi-ess and lies in the future, the right to the intervention of equity is not generally lost by previous delay in respect to which the elements of an estoppel could rarely arise. At the same time as it is in the exercise of dis- cretionary jurisdiction that the doctrine of reasonable diligence is applied, and those who seek equity must do it. A court might hesitate as to the measure of relief where the use by others for a long period, under assumed permission of the owner, had largely enhanced the reputation of a particular brand." 1 See Youst v. Martin, 3 S. & R. (Penn.) 423. ^ Duke of Leeds v. Amherst, 2 Phil- lips, 123. ' Marker v. Marker, 9 Hare, 16. Laches cannot be imputed, where the party had no knowledge of the facts which consti- tuted his ground of action, and this is the case, although the party might have ascer- tained the facts by due inquiry, if by any act of the defendant, or the circumstances, he had reasonably been lulled into secu- rity. If there have been gross laches, it is within the provision and indeed the duty of the court to deny relief. Coon v. Sey- mour, 71 Wis. 340 ; Bausman v. Kelly, 38 Minn. 197. * Cooper t). Greene, 3 De G., F. & J. 58. See also Hall v. Noyes, cited 3 Ves. 748 ; Lord Selsey v. Rhoades, 1 Bligh, N. s. 1 ; Anonymous, cited 6 Ves. 632 ; Rudd v. Sewell, 4 Jur. 882. N. Y. 178 ; Chapman 17. Rochester, 110 N. Y. 273 ; Menendez v. Holt, 128 U. S. 523 ; McLean v. Fleming, Q6 V. S. 245. In Meneudez v. Holt, Fuller, C. J., says : " Mere delay or acquiescence can- not defeat the remedy by injunction in support of the legal right, unless it has been continued so long and under such circumstances as to defeat the right itself. Hence, upon an application to stay waste, relief will not be refused on the ground that, as the defendant had been allowed to cut down half the trees upon the com- plainant's land, he had acquired by that negligence the right to cut down the re- mainder." Atty.-Geu. v. Eastlake, 11 Hare, 205. Nor will the issue of an in- junction against the infringement of a trade mark be denied on the ground that mere procrastination in seeking redress for depredations had deprived the true pro-, prietor of his legal right. Fullwood v. FuUwood, L. R. 9 Ch. D. 176, Ac- quiescence to avail must be such as to create a new right in the defendant. Eodgers v. Nowill, 3 De Gex, M. & G. 614. Where consent by the owner to the use of his trade mark by another is to be inferred by his knowledge and silence merely, it lasts no longer than the silence from which it springs. It is in reality no more than a revocable license. DuER. .T., in Amoskeak Manufacturing Company v. Spear, 2 Sandf. (IST. Y.)599; Julien u. Hoosier Drill Co., 78 Ind. 408 ; Taylor u Carpenter, 3 Story (U. S.), 458 : "So far as the act complained of is completed, acquiescence may defeat the remedy on the § 63.] EQUITABLE ACTIONS. 163 quiesced in that he does not know ; and in cases of this sort I think that acquiescence implies full knowledge, for I take the rule to be quite settled that a cestui que trust cannot be bound by acquiescence, unless he has been fully informed of his rights and of all the material facts and circumstances of the case." Sec. G2. Distinction between Laches and Acquiescence. — While the words ' ' laches " and ' ' acquiescence " are often used as similar in meaning, the distinction in their import is both great and important. Laches import a merely passive, while acquiescence implies active, assent ; and while, where there is no statutory limitation applicable to the case, courts of equity would discourage laches and refuse relief after great and unexplained delay, j'et where there is such a statutory limitation they will not anticipate it, as they may where acquieacence has existed. Laches amount, in fact, only to that inferior species of acquiescence described in the following terms by Kindersley, V. C. :^ " Mere ac- quiescence (if by acquiescence is to be understood only abstaining from legal proceedings) is unimportant ; where one party invades the rights of another, that other does not in general deprive himself of the right of seeking redress merely because he remains passive ; unless, indeed, he continues inactive so long as to bring the case within the purview of the statute of limitations." ^ Mere lapse of time may, however, make the reopening of a matter unreasonable.' Mere acquiescence will not be a bar in cases where there is an express trust. In another case,* which seems to be an authority for this proposition, the trust property had been improperly conveyed, but not for value, to the predecessor in title of the defendant upwards of one hundred years before suit, and the plaintiff had discovered the facts eighteen years before taking pro- ceedings ; yet, on demurrer, it was held that the statute had no operation. Sec. 63. When Equity will supply Remedy upon a Claim barred by the Statute. — When a party applies to a court of equity and carries on an unfounded litigation, — protracted under circumstances, and for a length of time which deprives his adversary of his legal rights, — a substitute for the legal right of which the party so prosecuting an unfounded charge has deprived him should be supplied and admin- istered.^ And in instances where a court of equity can consistently do 1 Rochdale Canal Co. v. King, 2 Sim. R. & My. 453 ; Pitt v. Lord Dacre, L. R. N. S. 3 Ch. D. 295. 2 These remarks are erroneously attrib- ^ Pultney v. "Warren, 6 Ves. 73 ; Bond uted to Lord Ceanwoeth by Lokd v. Hopkins, 2 Sch. & Lef. 630 ; Grant v. Chelmsford, in Archhold v. Scully, 9 H. Grant, 2 Russ. 598 ; East India Co. v. L. Cas. 360. Campion, 11 Bligh, 158. Where a de- « Green's Case, L. R. 18 Eq. 428. fendant in a suit at law has unjustly * Brown o. Radford, W. N. 1874, pleaded the statute of limitations, equity p. 124. See also Campbell v. Graham, 1 may, on that ground, refuse to the de- 164 STATUTES OS" LIMITATION. [CHAP. VI. SO, it will grant relief. But there are limits even to the powers of a court of equity ; and in matters where the party has a remedy at law, it has no more power to set aside the statute than a court of law has. Nor have such courts the power to enjoin a party from 'setting up the statute in a case where he is legally entitled to its benefits, and the exercise of such authority would be an usurpation of authority wholly unwarranted. As to the application of the statute in equity in cases involving trusts, see chapter on Trusts. fendant, in his defence to the suit, the has not power, on account of any supposed ■benefit of the statute. Lunn v. Johnson, inequity, to enjoin the party from insist- 3 Ired. (S. C.) Ch. 70. But in Walker i). ing on the statute of limitations in any Smith, 8 Yerg. (Tenn. ) 238, it was held action which may be brought for its re- that, where a purely legal demand has hegn coyery. barred hy lapse of time, a court of equity § 64.J ACKNOWLEDGMENTS. 165 CHAPTER VII. Removal of the Statutory Bab. Acknowledgments. Sec. 64. General Reasons for Judicial Ex- Sec. T1. Bare Acknowledgment. ceptions. 72. 65. Historical View of the Law relat- 73. ing to Acknowledgments. 66. Acknowledgments apply only to 74. Assumpsit. Theory on which 75. founded. 76. 67. Crucial Test. Bule in ACourt 77. V. Cross. 78. 68. Present Theory. 79. 69. Express or Implied Refusal to 80. pay. 70. Essential Requisites of an Ac- 81, knowledgmenfc. Promise to settle. Failure to deny Liahility. Ex- pressions of Regret, &c. Effect of Acknowledgment. Offer to pay in Specific Property. Promise not to plead the Statute. Conditional Acknowledgment. Hope to pay. By and to whom must he made. Offer to arbitrate. Recital in Deeds, &.c. When Acknowledgment must hp made.. Sec. 64. General Reasons for Judicial Exceptions. ^-The statute of James, which is the foundation of all of our statutes of limitations, and which is virtually in force in several of the States, and practically in all of them with some exceptions, did not contain any exception in case of acknowledgments of indebtedness by the debtor, yet at an earlj- day such an exception was read into the statute by the judges, and there is no instance of judicial legislation that is better sustained bj- both reason and justice than this. The true reason for these exceptions is to be found in the fact that the reason for a statutory bar utterly' fails when a debtor from time to time admits the existence and justice of the debt, and the courts, without intending to thwart, but rather to give effect to, the true intention of the statutes, began at an early day to hold that where a debtor expressly promises to pay a pre-existing debt, or ac- knowledges its existence under such circumstances that a promise to pay it can be implied, liie statute is suspended up to that date, and begins to run anew from the date of such new promise or acknowledg- ment. In other words, that under the circumstances named the debt is revived and put on foot fbr a new period of life, coextensive with the statutory provision. In all cases, however, where an acknowledg- ipent is relied upon to. renew a debt, it will be found that these requi- sites are indispensable : — First. The acknowledgment must be in terms sufficient to warrant the inference of a promise to pay the debt ; Second. It must be made to.tbe proper person ; •166 STATUTES OF LIMITATION. [chap. VH. Third. By the proper person ; and, Fourth. With the proper formalities, where any are required by stat- ute. And in the case of real property, in order to have any effect, it must be shown to have been made before time has finally run in favor of the person making it. With these general rules in mind, less difficulty will be experienced in dealing with isolated questions under this head than would otherwise exist. From the rules stated, it will be seen that, whatever abstruse theories maj' formerly have existed in reference to the principles upon which these statutes are predicated i or in reference to the presumptions aris- ing therefrom, it is now well settled that no acknowledgment is sufficient to take a case out of the operation of the statute, unless it is of such a character that a new promise sufficient to revive the debt can be fairly drawn therefrom ; ^ and the theory upon which the courts proceed is. 1 Barlow v. Bellamy, 7 Tt. 54 ; All- cock V. Gwan, 2 Hill (S. C), 326 ; Sands V. Gelston, 15 Johns. (N. Y.) 511 ; Cohen ■0. Auhin, 2 BaDey (S. C), 283; Smallwood V Smallwood, 2D. & B. (N. C.) 330 ; Eokert v. Wilson, 12 S. & R. (Penn.) 393. It must he distinct, and without question of its heing due, or an intimation that it would not be paid. Berghaus v. Calhoun, 6 Watts (Penn.), 219 ; Glein v. Ries, id. 44; Harrison v. Handley, 1 Bibb(Ky.), 443 ; Allen v. Wehster, 15 Wend. (N. Y.) 284 ; Head v. Manners, 5 J. J. Mar. (Ky.) 255. Therefore, an acknowledgment of the justice of a claim, without anything more, is sufiicient to remove the statute har ; but if the debtor, in connection there- with, says anything to indicate that al- though the claim is just, yet he does not intend to pay it, as " the debt is an honest one, but I have paid it," Tiohenor v. Col- fax, 4 N. J. L. 153; Smith v. Freel, Addis. (Penn.) 291 ; Gray v. Kemahan, 2 Const. Ct. (S. C.) 65, is not sufficient, although it is proved that the debt had not been paid, Bailey v. Bailey, 14 S. & R. (Penn.) 195, because no promise can be implied upon which to revive the debt. But if, upon being shown a note purporting to have been executed by him, he denies his signature thereto, but say, "Prove that I signed the note and I will pay it ; " if his signature is proved to he genuine, the statute bar is removed, because there is an express promise to pay upon the perform- ance of a condition, notwithstanding his denial. But if a debtor denies the debt, but says, " Prove by A. that I had the timber and I will pay for it ; " if it is proved by A. that he had the timber, then the statute bar is removed ; but proof of that fact by other witnesses, but not by A., will not remove the bar, because there is nothing to support the promise. Rob- bins V. Otis, 1 Pick. (Mass.) 368. So where, upon being shown a note, he ad- mitted its genuineness, but said he " had not been duly notified and was clear by law," it was held not sufficient to remove the statute bar, although in fact he had been duly notified, because there is nothing upon which a new promise can be predi- cated. Miller v. Lancaster, 4 Me. i59. So, where a defendant says, "If I owe you anything I will pay it, but I owe you nothing," Perley v. Little, 3 id. 97 ; so where, upon being shown a note, the de- fendant said, "I don't think father in- tended I should pay the"note; I think I have paid it ; but I suppose I must pay it, if anything is due, and they insist upon it, as father is dead," Russell ■». Copp, 5 F. H. 154 ; so where the defendant, after admit- ting the debt, said that " it was not in his power to pay it at that time, but he hoped to see the plaintiff and do something about it," Hancock ■». Bliss, 7 Wend. (N. Y. ) 267. But see Olcott v. Scales, 3 Vt. 173, where a contrary doctrine was held. An admission by the defendant after a debt is barred, that " it is just, so far as I know, but I left it to F., and §65.] ACKNOWLEDGMENTS. 167 that the old debt forms a good consideration for a new promise, either express or implied, and that any clear and unqualified admission of the debt as an existing liability carries with it an implied promise to pay, unless such inference is rebutted either by the circumstances or the language used.'' Sec. 65. Historical View of the Law relating to Acknowledgments. — When the statute of James I. went into operation, the courts were inclined to construe it strictly, and an acknowledgment to take a case out of the operation of the statute was required to amount virtually to an express promise ; ^ and in some of the cases it is suggested that not onlj' must there be a new promise, but also that this promise must be founded on a new consideration.' Later on, however, greater laxity 1 Harbold v. Kuntz, 16 Penn. St. 210 ; Yan V. KeiT, 47 id. 333 ; Grant v. Ashley, 12 Ark. 762 ; Calks v. "Weeks, 7 Hill (S. Y.), 45 ; Allison v. James, 9 AVatts (Penn.), 380 ; Ash u Patton, 3 S. & E. {Penn.) 300 ; Wakeman v. Sherman, 9 N. Y. 88; Porter v. Hill, 4 Me. 41; Peter- son V. Cobb, 4 Fla. 481; Deshon v. Eaton, 4 Me. 413 ; Hand v. Lee, 4 T. B. Mon. (Ky. ) 36; Gaucher v. Gondrau, 20 La. An. 156; Ferguson v. Taylor, Hayw. (N. C.) 20. In some of the cases it is said that under the statute of limitations a pre- sumption arises that the defendant, from the lapse of time, has lost the evidence which would have availed him in his de- fence if he had been seasonably called upon for payment ; hut, when this presumption is rebutted by an acknowledgment of the defendant within six years, the contract ia not within the intent of the statute. Bax- ter V. Penniman, 8 Mass. 133 ; Fiske v. Needham, 11 id. 452 ; Grist v. Newman, 2 Bailey (S. C), 92; M'Lean v. Thorp, 3 Mo. 215 ; Gailer v. GrinneU, 2 Aik. (Vt.) 349 ; Lyon v. Marolay, 1 Watts (Penn.), 271; Bullock v. Perry, 2 S. & P. (Ala.) 319 ; Beale v. Edmondson, 3 Call (Va.), 614. But it will he seen that these cases were decided when the old theory pre- vailed, and before it was regarded as essen- tial that the acknowledgment should he such as to raise a new promise to pay the debt. ^ Lacon v. Briggs, 3 Atk. 105; AVilliama V. Gun Fortescue, 177; Bass v. Smith, 12 Vin. Abr. 229. ' PoLLEXFEN, C. J., ID Bland V. Hasel- rig, 2 Vent. 151. have kept no account myself," also adding that the defendants "were indebted to him," is not sufficient. Fellet v. Liusley, 6 J. J. Mar. (Ky.) 337. " I gave the note, but it is paid," New Orleans, &c. Co. V. Harper, 11 La. An. 212 ; Dickinson V. McCamey, 5 Ga. 486, is not sufficient. In Pray v. Garcellon, 17 Me. 145, a. mere general admission, as "I owe him something," without .stating how much or what for, was held insufficient. See also Shitler v. Bremer, 23 Penn. St. 413, to the same effect. To take a case out of the statute of limitations, the acknowledgment of indebtedness proved must be shown to relate to the particular demand in ques- tion. Buckingham v. Smith, 23 Conn. 453. And a naked admission of indebted- ness, without indicating the amount or nature of the debt, or a promise to pay something, without any reference to the sum to be paid, or what it is to be paid for, is no answer to the plea of the statute of limitations. Shitler v. Bremer, 23 Penn. St, 413. But the question as to whether such an admission in a given case is suffi- cient must depend largely upon the cir- cumstances. Lord V. Harvey, 3 Conn. 370; and the circumstances attending what was said must be taken into account, as they form a, part of the res gestco, Whitney v. Bigelow, 4 Pick. (Mass.) 110. An acknowledgment by the defendant to a stranger that he had received the money of the plaintiff's testator, but that nobody could prove it, with a general statement that he would " satisfy " the plaintiff, is not such an acknowledgment or promise to pay as will answer the plea of the statute of limitations. Zaoharias b. Zaoharias, 23 Penn. St. 452. 168 STATUTES OP LIMITATION. [chap. VII. prevailed, and the courts, acting upon the mistaken principle that the statute was predicated upon the presumption of payment of the debt, and that an acknowledgment that rebutted this presumption was suffi- cient, for a time held that any admission of a debt, however indirect, and even though accompanied with a distinct expression of an intention not to pay, removed the statutory bar.^ But Lord Ellenboeough, in 1 Biyan v. Horseman, i East, 599 ; called a witness, to whom the defendant Frost V. Benough, 1 Bing. 266; Partington V. Butcher, 6 Esp. 66 ; Mount Stephen v.. Brooke, 3 B. & Aid. 41; Clark v. Hougham, 2 B. &C. 149; Dowthwaite v. Tibhut, 5 M. & S. 75 ; Scales v.. Jacob, 3 Bing. 688. To illustrate the old rule and its incon- sistency I give the gist of a few cases. Thus, in Baillie v. Siebald,, 15 Ves. 185, a plea of the statute was overruled upon letters from the defendant to the plaintiff assigning reasons for declining to pay, and recommending the plaintiff to bring an action, which were considered as amount- ing "to an acknowledgment of the debt sufficient to take the case out of the stat- ute, upon the authorities, though against principle. The case of Dowthwaite v. Tibbut, 5 M. & S. 75, was an action of assumpsit, to which the statute of limita- tions was pleaded. The plaintiff served as mate on a voyage to and from Russia in 1800, and the demand was for wages for that service, which took place during the Russian embargo. The witness, who proved the making a demand of payment on the defendant, proved also that the de- fendant answered to such demand, "I will not pay; there are none paid, and I do not mean to pay unless obliged ; you may go and try." This was held sufficient to take the case out of the statute of limita- tions. In assumpsit against the defendant as acceptor of a bill of exchange, and upon an account stated; evidence that the defend- ant acknowledged his acceptance, and that he had been liable, but said that he was not liable then because it was out of date, and that he could not pay it, and that if it was not, it was not in his power to pay it, was held sufficient to take the case out of the statute, upon a plea of actio non accrevit infra sex annos, Leaper v. Tatton, 16 East, 420. In the case of Peters v. Brown, 4 Esp. 46, the plain- tiff, to prove an acknowledgment of the debt by the defendant within six years, was also indebted, and who having called on him for money, the defendant said, "I suppose you want money; but I can't pay you; I must pay Mr. Peters (the plaintiff) first, and then I'll pay you." Held, a sufficient acknowledgment, to take the case out of the statute, notwithstand" ing it was not made to the party himself. If a defendant admits a debt which would otherwise be barred by the statute of lim- itations, but claims to be discharged by a written instrument, but which being re- ferred to does not amount to a legal dis- charge, he shall be bound by the admission, and the case be thereby taken out of the statute of limitations. Partington v. Butcher, 6 Esp. 66; In assumpsit for work and labor the statute was pleaded. Held, that evidence of an acknowledgmeij; by the defendant that the plaintiff had performed work for him,, but that he had an account in bar, and when a person who was then up the bay should come to town he would have the business settled, was sufficient to defeat the operation of the statute. Poe v. Conway's Admr., 2 H. & J. |Md.) 307. In an action against a hus- band for goods supplied to his wiffc for her accommodation while he occasionally visited her, a letter written by the wife acknowledging the debt within six years is admissible evidence to take the case out of the statute of limitations. Gregory v. Parker, 1 Camp. 394. The doctrine of these cases was followed in numerous American cases, as iu Cadmus V. Dumon, 1 N. J. L. 176 ; Sheppard v. Cook, 2 Hayw. (N. C.) 241. This doctrine and its inconsistency is well illustrated in Harris v. Oliver, 1 H. & G. (Md.) 204, in which the court advanced the doctrine that an acknowledgment,, accompanied by a naked refusal to pay, and an excuse for not paying, which in itself implies an ad- mission that the debt remains due, and furnishes no real objection to the payment of it, was sufficient. § 65.} ACKNOWLEDGMENTS. 169 an English case previouslj' referred to,^ sounded the first note of change in this lax doctrine in deciding that while he felt bound by previous authorities to follow the laxer rule, yet intimated quite strongly that if the question was res Integra, it might not be free from doubt ; and GiBBS, C. J., in a later case," expressed similar views ; and from this the courts began to change the rule, until finally the doctrine was brought up to the true theory, upon which it now stands, and which has been previously stated. The statute does not extinguish the debt, but only bars the remedy ; " 1 Bryan v. Horseman, ante. s Helliugs ». Shaw, 7 Taunt. 608. ' It is settled " that the statute of limitations does not destroy the debt," it only takes away the remedy. Quantock V. England, 5 Burr. 2630; Guatin v. Brattle, Kirby (Conn.), 303. It does notannihilate the debt, but suspends the remedy. Lord V. Shaler, 3 Conn. 131. It afibcts the remedy and not the right. Jones v. Hooks, 2 Rand. (Va.) 303 j Graves v. Graves, 2 Bibb (Ky.), 207 ; Com. w. McGowan, 4id. 63 J Barney v. Smith, 4 H. & J. (Md.)495 ; Oliver v. Gray, 1 H. & G. (Md.) 204. In Hulbert v. Clark, 128 N. Y, 295, it was held that the statute of limitations is merely a statutory bar to a recovery, and acts only upon the remedy ; it does not after the prescribed period destroy, dis- charge, or pay a debt or produce a pre- sumption of payment, but simply stanjis in the way of the creditor seeking to com- pel payment. A lien on property, personal or real, given as security for a debt is not im- paired by the fact that the remedy at law for the recovery of the debt is barred by the statute. There is no question but that the legislature may repeal the statute, and that a debt upon which the right of action wa-s barred by the statute at the time of the repeal may thereafter be enforced by action without invading the oonatitutiond rights of the debtor. An action for the foreclosure of a mort. gage given to secure the payment of cer- tain promissory notes, was brought within twenty years of the date of the mortgage, but more than six years after the notes fell due. There was no covenant in the mortgage to pay the notes. Held, that the action was npt barred by the statute of limitations ; that the mortgage continued to be a subsisting lien, and could be fore- closed after an action at law upon th& notes was barred by the statute. Jackson u. Sackett, 7 Wend. (N. Y. )i 94, distinguished and limited. Borst w. Corey, 15- N. Y. 505, distinguished and questioned. Reported below, 57 Hun,. 658. Earlb, J., in Hulbert ». Clark, ante,. said : "The sole question for our determi- nation iswhethefthemortgage continued to. be a subsisting lien and could be foreclosed after an action at law npon the notes was. barred by the statute of limitations. This, is an interesting question which has givten/ rise to considerable discussion in the courts. of this country and England. We do not,, however, deem it difficult of solution. The statute of limitatious does not, after the prescribed periods destro)', dis- charge, or pay the debt, but simply bars a; remedy thereon. The debt and the obli- gation to pay the same remain, and the: arbitrary bar of the statute alone stands, in the way of the creditor seeking to com- pel payment. The legislature could repeal: the statute of limitations and then the payment of a debt upon which the right of action was barred at the time of the repeal, could be enforced bj; action, and the constitutional rights of the debtor are not invaded by such legislation. It was. so held in Campbell v. Holt, 115 U. S. 620. It was held in Johnson v. Albany & Susquehanna E. R. Co., 54 N. Y. 416, that -the statute of limitations acts only npon the remedy ; that it does not impair the obligation of a contract or pay a debt or produce a presumption of payment, but that it is merely a statutory bar to a re- covery ; and so it was held in Quantock v, England, 6 Burr. 2628, and so it has ever since been held in the English courts, 170 STATUTES OP LIMITATION. [chap. vn. it may therefore be revived by a subsequent promise or an unqualified acknowledgment on the part of the defendant, although it was formerly These notes were, therefore, not paid, and so the referee found. The condition of the mortgage has, therefore, not been com plied vfith. The notes being valid in their inception, the only answer to the foreclosure of the mortgage is payment. The mortgage was given to secure payment of the notes, and until they are paid the mortgage is a subsisting security and can be foreclosed. The mortgage being under seal can be foreclosed by action at any time within twenty years. It is only an action upon the notes that is barred after six years. It is a general rale recognized in this country and in England, that when the security for a debt is a lien on property, personal or real, the lien is not impaired because the remedy at law for the recovery of the debt is barred. The subject has several times been under consideration in the courts of this State. In Jackson v. Sackett, 7 Wend. 94, ejectment was brought on a mortgage executed as col- lateral security for the payment of a sum of money secured to be paid by a note. The note had been past due more than twenty years when the action was com- menced. Upon the trial it was the con- tention of defendant's counsel that from the lapse of time the note must be pre- sumed to have been paid, and on that ground the court nonsuited the plaintiff. The Supreme Court upon review held, that the evidence as to payment ought to have beeil submitted to the jury, and nothing else was decided. It was, in fact, held that payment of note was the only defence to the action, but the jury writing the opinion expressed what must be conceded to be erroneous views as to the presump- tion of payment furnished by the statute of limitations. He appeared to be of the opinion that after six years there was a statutory presumption of payment, -not a presumption of law, but a presmirption of fact from which, with other evidence, the jury might infer payment. In Heyer v. Pruyn, 7 Paige, 465, the Chan- cellor said that the intimation of an opin- ion by Justice Sutherland in Jaclcson V. Sackett, "That a mortgage to spcure a simple contract debt was presumed to be paid in six years, because the statute of limitations might at the expiration of that time be pleaded to a suit on the note, certainly cannot be law." The case of Pratt V. Huggins, 29 Barb. 277, is quite like this. This was an action to foreclose a mortgage given to secure the payment of $230, for which the mortgagee at the same time took the mortgagor's pro- missory note. The note and mortgage were dated Feb. 5, 1835, and were payable Feb. 1, 1836. The action was commenced Sept. 6, 1855. Upon the trial the defendant claimed that the plaintiff could not maintain the action because an action upon the note was barred by the statute of limitations, and so the trial judge held and gave judgment for the defendant. The plaintiff appealed to the General Term, and there, after much discussion and consideration the judgment was reversed, the court holding that a debt secured by a sealed mortgage and an unsealed note may be enforced by a foreclosure of a mortgage after the ex- piration of six, but before the expiration of twenty years from the time when the debt became due ; that the lapse of six years is not conclusive evidence that the mortgage has been paid, and that the pro- vision of the statute of limitations mak- ing the lapse of six years a bar in such case, is in terms confined to an ac^on upon the note, and does not operate to defeat a remedy on the mortgage. There, as here, there was no covenant to pay in the mortgage, and the mortgage was col- lateral to the note. In Mayor, &c. v. Colgate, 12 N. Y. 140, it was held that the lien of an assessment which was to be regarded in effect as a mortgage, could be enforced after the statute of limitations would have barred a common-law action against the person liable to pay the same for the recovery thereof. In Morey v. Farmers' Loan & Trast Co., 14 N. Y. 302, an action by the vendee for the specific performance of a contract under seal to convey land, on payment of the purchase- money, it was held that the presumption arising from the lapse of twenty years after the money became due was not sut- §66J ACKNOWLEDGMENTS. 171 held that a promise renewed within six years, if not upon a new con- sideration, would not be binding.^ But it is now well settled that a ficient evidence of payment to entitle the plaintiff to the relief demanded. To the same effect is Lawrence v. Bull in the same volume at page 477. In Borst v. Corey, 15 N. Y. 505, it was held that an action to enforce the equitable lien for the pur- chase-money of land, was barred by the lapse of six years after the debt accrued. The reasoning by which the result was reached in that case is not altogether satis- factory, and yet that decision is not in conflict with the views we now entertain. The Judge there writing the opinion said : "The equitable lien (for the purchase- money) is neither created nor evidenced by deed, but arises by operation of law, and is o{ no higher nature than the debt which it secures." He distinguished that case from one like this as follows: "It has, however, been held that when a mortgage was given to secure the payment of a simple contract debt, the statute limiting the time for commencing actions for the recovery of such debt, was no bar to an action to enforce the mortgage," and he cited among other cases Heyer v. Pruyn. He said further: "There is a material distinction between a mortgage and the equitable lien for the purchase price of land given by law, and also be- tween an action to foreclose a mortgage, and one to enforce a lien. The action to foreclose a mortgage is brought upon an instrument under seal, which acknowl- edges the existence of the debt to secure which the mortgage is given ; and by reason of the seal, the debt is not pre- sumed to have been paid until the expira- tion of twenty years after it became due and payable. In Johnson v. Albany & Susquehanna R. R. Co., supra, the action was to compel defendant to issue its cer- tificate for stock subscribed for after an action to compel the subscriber to pay for the stock had been defeated on the ground that the action was barred by the statute of limitations ; and it was held, that the plaintiff, notwithstanding the statutory jbar, could recover only upon proof of actual payment. In Lewis v. Hawkins, 23 Wall. 119, Mk. Justice Swayne, in writing the opinion, recognizes the rule above stated as follows: ■ "That the remedy upon the bond, note, or simple contract for the purchase-money is barred in cases like this, in nowise affects the I'ight to pro- ceed in equity against the land." Hardin V. Boyd, 118 U. S. 756, was a bill in equity to set aside a conveyance of lands, or in the alternative for the payment of the purchase-money, and to make it a lien on the lands; and it was held that, al- though the debt for unpaid purchase- money was barred by limitation under the local law. the lien therefor on the land was not barred. In Coldcleugh v. John- son, 34 Ark. 312, the Supreme Court said: "The debt itself would appear to be barred in 1872, and no action could he brought at law ; but the bar of the debt does not necessarily preclude a mortgagee or vendee retaining the title from proceeding in rem in a court of equity to enforce his specific lien upon the land itself." The case of Thayer v. Mann, 19 Pick. 535, is precisely in point. There is the case of a mortgage of real estate to secure the payment of a promissory note; it was held that although the note was barred by the statute of limitations, yet, because it had not been paid the mortgagee had his remedy upon the mortgage. In Hancock V. Franklin Ins. Co., 114 Mass. 155, there was a pledge of property to secure a note, and it was held that the pledgor might avail himself of the statute of limita- tions as a defence to a suit upon the note, but that the .statute affected merely the remedy on the note and did not defeat the lien of the pledgee upon the property pledged. In Hannan v. Hannan, 123 Mass. 441, in an action to foreclose a mortgage given to secure a note, it was held that the question in such a case whether anything is due upon the note must be conducted in nearly the same way, and depended mainly upon the same evidence as if the note were in suit, and that in such an action the defendant may show the same matters in defence against 1 2 Vent. 152. 172 STATUTES OP LIMITATION'. [chap. vit. promise of payment, or an unqualified acknowledgment of the debt as still due and unpaid, will, if made within the six years before action is brought, although the debt was contracted long before, deprive the defendant of the benefit of the statute. And a promise to pay a debt barred by the statute is sufficient without any new consideration. The original debt is a sufficient consideration, and the new promise revives the old debt instead of creating a new one.^ the mortgage, except only the statute of limitations, that he could against the note. In Shaw v. Silloway, 145 Mass. 503, it was said: "If there is an actual pledge and the debt becomes barred, this does not give the debtor a right to reclaim the pledged property. The debt is not ex- tinguished, the statute only takes away the remedy. In case of an ordinaiy mortgage of real or personal property,- the security is not lost, though the debt be barred." In Joy v. Adams, 26 Me. 330, it was held that the mortgagor could not defeat the right of the mortgagee to foreclose his mortgage by showing merely the notes to which the mortgage security was collateral had become barred by the statute of limitations. In Belknap v. Gleason, 11 Conn. 160, it was held that the 'statutes of limitations being statutes of repose, suspend the remedy, but do not cancel the debts; that though such stat- utes are equally available as a defence at law and in equity, yet where there are two securities for the same debt, one of which is barred by the statutes, and the other not, the creditor, not- withstanding he has lost his remedy at law on the former,' may pursue it in equity on the latter; and that where the security for a debt is a- lien on property, personal or real, that lien is not impaired because the debt is barred by such stat- utes. In the case of BaUou v. Taylor, 14 R. I. 277, it was held, that the remedy on a mortgage is not lost because a per- sonal action on the mortgage note is barred by the statute of limitations. In Spears v. Hartley, 3 Espinasse, 81, Lord Eldon held, "That a whai-finger who had a lieu on a log of mahogany could hold the log until his demand- was satis- fied, although the demand was barred by- the statute of limitations ; and Higgins u. Scott, 2 B.& Ad.418, is to the same effect." 1 Shackleford v. Douglass, 31 Miss. 95 ; Harian u. Bemie, 22 Ark. 217 ; Illsley v. Jewett, 3 Met. (Mass. ) 439 ; Newlin v. Duncan, 1 Harr. (Del.) 204 ; Kimmell v. Schwartz, 1 111. 216. Letters written by a debtor to his creditor, acknowledging an indebtedness but declaring his inability to pay it, are sufficient to repeal the statute. Bloom V, Kern, 30 La. An. part 2, 1263. So an acknowledgment of a debt by a testator, by a schedule prepared at the time of making his will, if made within the period prescribed by statute before action brought, is sufficient. Rogers v. Southern, 4 Bax. (Tenn.) 67. See also Scovel V. Gill, 30 La. An. part 2, 1207 ; Finkbone's Appeal, 86 Penn. St. 368. But see Canton Female Academy v. Gil- man, 55 Miss. 148, where a letter in these words was held insuificient : " It would suit my convenience to execute my note for the balance due you for rent, pay- able Jan. 1, 1877." In Oliver ». Gray, 1 H. & G. (Md.) 204, the effect of an acknowledgment upon the debt is ably discussed by Buchanan, J. He sayl : "The only- difference between the act of limitations in this State and the statute of James is, that here the limitation is but three years ; and in this State the rule pre- vailing in England, that an acknowledg- ment of the debt by the defendant within the time prescribed for bringing the suit is sufScient to take the case out of the statute, has been adopted. In Barney v. Smith, 4 H. & J. (Md.) 485, the venerable man who then presided (Judge Chase), said : ' The act of limitations does not oper- ate to extinguish the debt, but to bar the rpmedy. The act of limitations proceeds upon the principle, that from length of time a presumption is created that the debt has been paid, and the debtor is de- prived of his proof by the death of his witnesses or the loss of receipts. It is §66.] ACKNOWLEDGMENTS. 173 Sec. 66. AcknoTvledgments apply only to Assumpsit. Theory on which founded. ^— The doctrine relating to acknowledgments applies the design of the act of limitations to pro- tect and shield debtors in such a situation; and consistent with this principle and this view the decisions have been made, that the acknowledgment or admission of the debt will take the case out of the act of limitations ; because, if the money is still due and owing, the defendant has not suffered from the lapse of time, nor has any inconvenience resulted to him there- from.' And again, in another part of his opinion, he says: 'The acknowledgment to the surviving partner saves and pre- serves the remedy in the survivor, and avoids the bar by the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original promise.' We, therefore, are not called upon now for the first time to give a con- struction to that act; that task has been performed by others, at whose hands we have received it, with their inteipretation of it, from which, if we were disposed to do so, we should not feel ourselves at liberty to depart. "Perhaps it would have been better, if, instead of endeavoring to rescue particular cases out of its operation, the letter of the statute had been sti-ictly adhered to; if the original debt had always been consid' ered as extinguished, and the moral obliga- tion treated as » sufficient consideration for an express promise to pay, on which to found an action. But according to all the cases (for in this at least they agree), the debt is considered as not extinguished, and the defendant can only avail himself of the statute in England, and act of assembly here, by pleading it; which; if he omits to do, it is held to be a waiver of its benefit, and the plaintiff may recover on the general issue, though the debt should appear by the declaration to be of no longer standing than the limited period. This settled construction has produced all the difficulties and discrepancies com- plained of; but it is a construction which is not now to be shaken by us; nor, on the other hand, should its operation be ex- tended further than it has already gone. "Taking the act of limitations, then, as we find it, operating upon the teraedy only, and not as extinguishing the debt, and feeling the necessity for-a more definite and certain understanding of the effect of the adopted construction than can easily be collected from particular cases, we will endeavor not to reconcile the various de- cisions that are to be found in the boolcs on this subject, but to lay down some gen- eral rules for the practical application of the principles they establish, that the act does not extinguish the debt, but only bars the remedy, and that an acknowledg- ment by the defendant of the debt, or a promise to pay it within the time pre- scribed, is sufficient to revive the action. " 1st, then, the suit is to be brought on the original cause of action, and not on the new promise or acknowledgment, which only has the effect to restore the remedy ; which is not only according to the common practice, but is directly and strongly asserted in Barney v. Smith. "2d. It need not be absolute and uncon- ditional, but a conditional promise is suffi- cient; and in such case it is incumbent on the plaintiff to show at the trial either a performance of the condition, or a readi- ness to perform it, as if the words be, ' prove your debt, and I will pay you,' which is an express promise to pay, on condition that the debt is proved. Heyling v. Hastings, 1 Ld. Eaym. 389 ; Trueman v. Fenton, 2 Cowp. 548; Davies v. Smith, 4 Esp. 36; Loweth «. Fothergill, 4 Camp. 185; Busli V. Barnard, 8 Johns. (N. Y.) 407. These cases furnish different examples of con- ditional promises to pay, each of which was held sufficient to take the case out of the statute. "3d. An acknowledgment to take the case out of the act of limitations must be of a present subsisting debt, unaccom- panied by any qualification or declarations, which, if true, would exempt the defend- ant from a moral obligation to pay ; for the law will not raise an assumpsit, or imply a promise to pay what in equity and good conscience a man is not bound to pay. As if the defendant admits the debt, but at the same time resists the pay- ment of it by alleging that he has a set-off against it, aud that tlie plaintiff owes him 174 STATUTES OF LIMITATION". [chap. VII. ouly to cases founded upon assumpsit, and has no application where the action does not rest upon a promise. An express promise to pay a more money, which virtually amounts to a, denial of his liability, and a refusal to pay any part of it on grounds furnishing a sufficient moral excuse for not paying it, the acknowledgment is not suificient to remove the statute har. And, indeed, taking the whole of the acknowledgment together (which must always be done), if it is in effect equivalent to a declaration that the debt is discharged, it is not suf- ficient to raise the necessary new promise. If it were otherwise, and the plaintiff was permitted to avail himself of the acknowl- edgment of the debt, and to reject the qualification, injustice would always be done where the set-off, claimed by the de- fendant, should be itself barred by the act, or he should be in want of testimony sufficient to support it. Or, if he admits the receipt of money, and that it has not been paid, but claims it as a gift ; which, if true, would exempt him from any liabil- ity to pay. Or if, on being called upon, the party says he has paid the debt, and will furnish the receipt, but fails to do so, this will not be sufficient to charge him; but is the very case intended to be pro- vided for by the act, the case of a man who is supposed to have lost his evidence of payment. "4th. What kind of promise or acknowl- edgment is sufficient to take a case out of the act of limitations is for the court to decide ; and the evidence offered to prove such promise or acknowledgment is proper to be submitted to the jurj', as in other cases, under the direction of the court. "It has been contended in this case that where the defendant alleges the debt to have been discharged, and refers to a par- ticular mode of discharge, the plaintiff may entitle himself to recover by disprov- ing the mode of discharge referred to. We are aware that the same has been said else- where. In Hellings v. Shaw, 7 Taunt. 608, Chief Justice Gibbs said: 'Where the defendant has stated, not that the debt remained due, but that it was discharged by a particular means, to which he has with precision referred himself, and where he has designated the time and mode so strictly, that the court can say it is im- possible it had been discharged in any other mode. There the court have said, if the plaintiff can disprove that mode he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely.' But after- wards, in Beale v. Nind, 4 B. & Aid. 571, Justice Baylet, after reciting the words of Chief Justice Gibbs, says: 'I cer- tainly am not aware of the cases to which my Lord Chief Justice Gibbs refers to support that position.' Thus strongly questioning the soundness of the proposi- tion, to which (seeing the inroads that have already been made upon the statute, which we are not disposed to push any farther, and no . such decision having been made by this court) we are not prepared to yield our assent; but think that every acknowl- edgment of a debt, which is offered to take a case out of the act of limitations^ must be taken altogether, and that no evidence can be received to turn a denial of the existence of the debt into an acknowledg- ment of a subsisting liability, by proving that he was mistaken in supposing it to have been paid; which would be to take a case out of the act of limitations by other proof than the acknowledgment of the party, for in such a case he manifestly not only does not intend to acknowledge a present subsisting debt, but in fact denies it, and there is nothing to carry, or on which the law can raise an implied as- sumpsit. The declai'ations of the defend- ant are the plaintiff's own proof; and if he chooses to introduce them, he must be con- tent to take them as they are, and cannot be permitted to disprove them by other evidence, in order to raise an implied promise, or to furnish evidence of a prom- ise to pay a debt the existence of which is. denied. With these views of the subject we do not think, from the evidence set out in the record, that the plaintiflF is entitled to recover. Whatever might have been the effect of the expressions of regret by the defendant, if they stood alone, 'that 'the plaintiff had been excluded from the deed of trust, and had not been allowed to come in for his claim,' the declarations al- ways accompanying them, 'that he did § 66. J ACKNOWLEDGMENTS. 175 bond barred by statute does not remove the statute bar ; but it is held that an action of assumpsit may be maintained upon such promise, and the bond may be given in evidence as the consideration of the promise.^ lu a New York case,'' a promise to pay a bond barred by the statute, evidenced by a written aclinowledgment thereon within twenty years, was held sufficient to rebut the presumption of payment and to uphold an action on the bond ; and in a Missouri case * it was held that a part ' payment of a bond removed the statute bar. In a Kentucky case * it was held that where the obligor of a bond, with a full knowledge of his legal rights, admits his liability, such admission removes the statute bar, and a payment of interest on a bond before the statute has run thereon has been held sufficient to suspend the statute.^ But the present theory relative to acknowledgments, part payments, &c., is not applicable to specialties ; and where such debts are within the statute neither an acknowledgment, new promise, or part payment can operate either to suspend the operation of the statute or remove the bar when it has once attached. Upon such obligations the action is not, and in the nature of things cannot be, grounded upon a promise, but must be either in debt or covenant, or actions in effect the same ; and if the obligation is in anj'wise changed or altered by parol or a writing not under seal, it is instantly reduced to a simple contract ; but a promise to paj-, or an admission of liability thereon, does not produce this effect. The action still remains a specialty action, and it is difficult to understand how to a plea of the statute a new promise can be replied ; and in Alabama ° it is held that a new promise will not revive such a debt. The same rule applies to all specialty debts, or debts which cannot be recovered in as- sumpsit. Thus it has been held, and, as we believe, correctlj^ that the replication to a plea of the statute of a new promise is not good in an not consider that he was indehted to the the defendant's denial of his liability into plaintiff, because he had it in his power to an acknowledgment of a present subsisting have saved himself with the securities re- debt." ceived from WUliam Taylor, and ought From the foregoing opinion I have not, therefore, to have looked to him for stricken, out all the propositions from three the money, ' sufficiently show that it never to ten, because they do not state the law was his intention to acknowledge the claim as it now exists, otherwise it is a good ex- of the plaintiff as a subsisting debt due by position of the law upon the subject. him, but, on the contrary, taken together, i Young v. Mackall, 3 Md. Ch. Dec. amounted to a denial of any existing lia- 398. bility on him to pay, and for reason, which, ^ Carll v. Hart, 15 Barb. (N. Y.) 565. if true, furnished a real objection and sulB- ^ Vernon County v. Stewart, 64 Mo. cient excuse for not paying it. For if the 408. plaintiff had in his hands securities with « Tillett v. Com., 9 B. Mon. (Ey.) which he should and might have covered 438. his claim, but from negligence or misappli- ^ Banning on Limitations, 30 ; Craige cation of the funds did not do so, he should ^». Callaway, 12 Miss. 94 ; Ai-mistead i;. not now look to the defendant for it, nor Brooks, 18 Ark. 621 ; Hartman v. Sharp, can he be permitted, by evidence of the 61 Mo. 29. insufficiency of those securities, to convert * Crawford v. Childress, 1 Ala. 482. 176 STATUTES OF LIMITATION. [chap. VII. action upon a judgment of a court of record, the court holding that such replications were only applicable in actions upoiy promises.^ But in New York ' such a replication to an action on a justice's judgment was sustained ; but it was sustained for reasons peculiar to that State, and upon a line of reasoning that will hardly commend it as an authority. But where the statute, as is the case in some of the States, expressly provides that part paj-ment, &c. , shall remove the bar as to this class of claims to the extent so provided, effect must be given thereto ; and, as will be seen hereafter, where this class of claims are left to the oper- ; ation of the presumption of paj'ment and satisfaction arising from the . lapse of time, a payment, or acknowledgment even, overcomes this pre- sumption, and gives it a new period of Hfe. ■ If the gist of an action is the injury committed by the defendant, and the right of action is once barred by the statute, it is impossible to revive it by an acknowledgment that the defendant committed the injury, or of an indebtedness resulting therefrom ; " and in the case of torts no acknowledgment can, upon any principle, suffice to avoid the statute.* 1 Taylor a. Spicey, 11 Ired {N. C.) L. 427 ; Niblaok v. Goodman, 67 Ind. 174. 2 Carshore v. Huyck, 6 Barb. (IT. Y.) 583. 8 Brand v. Longstreet, 4 N. J. L. 325; Avant V. Sweet, 1 Brev. (S. C.) 228. In Galligher ■». Hollingsworth, 3 H. & McH. (Md.) 122, a promise after the statute had run was held not sufficient to take a case out of the statute against a carrier for a loss of goods, as it was founded upon a tort. Ott V. Whitworth, 8 Humph. (Tenn.) 494 ; Oothout v. Thompson, 20 Johns. (S. Y.) 278 ; Hurst v. Parker, 1 B. & Aid. 92. * "Where the plaintiff has the right to waive the tort and proceed in assumpsit, the rule stated in the text does not apply, especially if the plaintiff makes his elec- tion before the statute has run. Morton v. Chandler, 8 Me. 9. In an action of as- sumpsit, the declaration stated as a breach, that the defendant did not diligently and sufficiently make a search at the Bank of England, to ascertain whether certain stock was standing in the name of certain per- sons, the defendant having been employed as an attorney so to do. The omission to search took place more than six years be- fore action brought, although it was not discovered by the plaintiff until within six years. On the discovery being made, the defendant said that it was 'owing to the omission of his clerk, and that he, the de- fendant, was responsible. The statute of limitations having been pleaded, it was held that upon this form of declaration the plaintiff was not entitled to recover ; and held, also, that upon this record such an acknowledgment was not sufficient to take the case out of the statute. Short v. Mc- Carthy, 3 B. & Aid. 626. In another case the declaration stated that the defendant, on consideration, &c., promised to invest the plaintiff's money on good security ; but that he invested it on bad security. The defendant pleaded the general issue and statute of limitations ; replication, thatude- fendant promised as above within six y«ars ; proof, that within that time the defendant acknowledged the security to be bad, and promised that plaintiff should be paid. Held, that the plaintiff could not recover, the declaration stating no debt to which the subsequent promise could be appliedi Dallas, C. J., said: "To revive a debt by promise, and take a case out of the statute, there must be an antecedent debt, and if a promise should be made, when there is no antecedent debt, it would be necessary to frame a special declaration on such a promise." Whitehead v. Howard, 2 B. & B. 372. An assumpsit after thres years is not sufficient to take a case out of the statute of limitations against a carrier, it being founded on a tort. Gallighor v. §C6.] ACKNOWLEDGMENTS. 177 Thus, in the case last cited in the preceding note, a promise to make compensation for a trespass committed in illegally taking away coals in a coal-mine, was held not sufficient to revive the cause of action.' This doctrine, together with the present received doctrine as to the theory of acknowledgments, namely, that an acknowledgment, to be effectual, must amount to a fresh promise to pay, is well shown in the judgment of Tenterden, C. J., in an English case,^ in which he said: "It is only in actions of assumpsit that an acknowledgment can be held an answer ; and when, in the case of Hurst v. Parker, it was decided to be inapplicable to actions of trespass, Lord Ellenborough gave what ap- peal's to be the true reason, that in assumpsit ' an acknowledgment of the debt is evidence of a fresh promise,' and that promise is considered as one of the promises laid in the declaration, and one of the causes of action which the declaration states.' If acknowledgment had the Hollingsworth, 3 H. & MoH. (Md.) 122. To nil action on the ciise for a deceit in the sale of a negi-ess, the defendant pleaded not guilt)' within six years, on which issue was joined. Spencer, C. J., said : "The question then is, whether, if we consider the defendant as admitting the fraud, within six years, and declaring he was willing to do what was right, such admis- sion and declaration can take the case out of the operation of the statute. The plea was that the defendant was not guilty within six years ; the replication is, that he was guilty within six years next before the commencement of the suit. Now, it is inconceivable how an admission of the fraud within six years can render the party guilty of committing it anew. It was consummated when the sale took place, and any subsequent confession relates back to that period. The confession of the fact does not prove a new fraud, but the fii'St and original one. The plaintiff, in his rep- lication, has undertaken to prove that the defendant was guilty within the six years. Proving that he had acknowledged the fact within six yeare is no proof that the act was done within six years, and it does not support the issue. A case of this kind does not stand upon the same principle as the acknowledgment of a debt within six years. There, the acknowledg- ment is evidence of a new promise ; liere, it is not evidence of a new trespass, and therefore there is no analogy between the two cases. This view of the case satisfies me that without inverting all the rules of logic VOL. I. — 12 (and special pleading has been aptly com- pared to logic), it is impossible to say that a confession of a tort is a re-perpetratioa of it ; and, unless it is, the fact asserted ia the replication, that the tort was commit- ted within six years is not made out by a confession that the tort was committed- more than six years before. Oothout v. Thompson, 20 Johns. (N. Y.) 278. In the- case of Hurst v. Parker, 1 B. & Aid. 92, which was an action of trespass of break- ing and entering coal-mines and taking away coals, the defendant pleaded actio- non accTevit infra sex annos ; to which the- plaintiff replied in the affirmative. At the trial no evidence was given to show that, the trespass was actually committed within six years. Held, that evidence of a prom- ise to make compensation, made by the- defendant within six years before the com- mencement of the action, and when he- was threatened with an action for taking^ away coals, was not sufficient support to tliis issue ; because the plaintiff was bound to prove the affirmative, that he had a good cause of action within six years be- fore the commencement of the suit, and, as the action was predicated in tort, it could not be sustained by mere proof of a promise to compensate for it. But if the action had been predicated upon the prom- ise, the rule would have been otherwise." 1 Hurst V. Parker, 1 B. & Aid. 92. " Tanner v. Smart, 6 B. & C. 603, 605. In Little v. Blunt, 9 Pick. (Mass.) 488, what may be regarded as the correct 178 STATUTES OF LISHTATION. [CHAT'. VII. effect which the cases in the plaintiff's favor attribute to it, one would have expected that the replication to a plea of the statute could have pleaded the acknowledgment in terms, and relied upon it as a bar to the statute, whereas the customary replication, ever since the statute, to let in evidence of acknowledgment, is that the cause of action accrued or the defendant made the promise within six yeara. And the only principle upon which it can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and, as such, creates a new cause of action, and supports and establishes the promises which the declaration states. Upon this principle, wherever the acknowledg- ment supports any of the promises in the declaration, the plaintiff suc- ceeds ; where it does not so support them (though it may show clearly that the debt never has been paid, but is still a subsisting debt) , the plaintiff fails." Sec. 67. Crucial Test. Rule in A'Court v. Cross. — A crucial test at length arose in the case of A'Court v. Cross.'- In that case the defendant had made an admission in the following terms : "I know that I owe the money, but the bill I gave is on a three-penny stamp, and I will never pay It." The decision in the case, which was in favor of the de- fendant, practically overruled a large course of intermediate decisions, and returned to something nearly approaching the strictness of the primitive construction of the act. Best, C. J., in giving judgment, remarked : " I am sorry to admit that the courts of justice have been ■deservedly censured for their vacillating decisions on the 21 James I. e. 16. When by distinctions and refinement which. Lord Mansfield says, the common sense of mankind cannot keep pace with any branch ■0f the law is brought into a state of uncertainty, the evil is only to be remedied by going back to the statute." However, it is not wholly ■correct to say thai an acknowledgment revives the previous debt. It rather, as has been seen, ci-eates a new debt by virtue of an implied projn- ise ; yet it does none the less to a certain extent revive the previous debt, so far as is sufficient to make it a good consideration for the new promise. The present doctrine on the subject was explained with great clear- ness bj' WiGRAM, V. C, in a leading English case,'' as follows: "The legal effect of an acknowledgment of a debt barred by the statute of limitations is that of a promise to pay the old debt, and for this pur- pose the old debt is a consideration in law. In that sense and for that purpose the old debt may be said to be revived. It is revived as a con- rule, and also identical with that stated in promise." Baxters. Penniman, 8 Mass. the text, was held. In that case the court 133; Sulliran v. Halker, 15 id. 374; Brown say : "A new promise is a new cause of v. Anderson, 13 id. 201 ; Oliver v. Gray, action, but the plaintiff may declare on 1 H. & G. (Md.) 204 ; Kinne v. Schwartz,, the original promise, and if the statute is 1 111. 215. pleaded, he may reply the new promise. * 3 Bing. 329. He need not declare specially on the new * Phillips v. Phillips, 3 Hare, 281. §68.] ACKNOWLEDGMENTS. 179 sideration for a new promise. But the new promise and not the old debt is the measure of the creditor's right. If a debtor simply acknowl- edges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consid- eration. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two j-ears, or out of a particular fund, the creditor can claim nothing more than the promise gives him." Sec. 68. Present Theory. — It may now be said that the theory of acknowledgment is settled as to simple contracts, on the principle that there is required either an express promise to paj' the debt, or an abso- lute admission of indebtedness from which a promise to pa}' may natu- rally be infezTed,^ which new promise is sufficiently supported by the I Smitli V. Thome, 18 Q. B. 134, 143; Senseman v. Hershman, 82 Penn. St, 83 ; Millei- V. Baschone, 83 id. 856; Wacliter v. Albee, 80 111. 47; Falson «. Bowden, 76 N. C. 425; CavpenteT t>. State, 41 Wis. 36; Bell V. Crawford, 8 Gratt. (Va.)llO; Boss V. Ross, 20 Ala. 105 ; Bryan v. Ware, 20 id. 687 ; Ten Byok v. Wing, 1 Mich. 74 ; Johnson v. Evans, 8 Gill (Md. ), 155; Grant V. Ashley, 7 Ark. 762; Bailey v. Crane, 21 Kck. (.Slass. ) 323 ; Mumford v. Freeman, 8 Met. (Mass.) 432. Except -where the statute otherwise provides, an express promise is not necessary, Black v. Eey- bold, 3 Harr. (Del.) 528; Lee v. Polk, 4 McCord (S. C. ), 215 ; but the acknowledg- ment must he so explicit as to be equiva- lent to a promise, Fellows v. Guimarin, Dudley (Ga.), 100; Brewstel-». Haixleman, id. 138 ; Bradie v. Johnson, 1 Sneed (Tenn.), 464. In Bell v. Morrison, 1 Pet. (U. S.) 351, Story, J., in a very able opinion, gave expression to what may be regaided as the modern rule, to the effect that an acknowledgment, in order to repeal the statute, must show positively that the debt is due, either wholly or in part, and must be unqualified. And if the bar is sought to be renewed by a new promise, that promise, as a new cause of action , must be proved in a clear and explicit manner, and be unequivocal and determinate. If there is no express promise, and a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment oTight to contain an un- qualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. Strickland v. Walker, 37 Ala. 885 ; Ash v. Patton, 3 S. & R. (Penn.) 300 ; Yaw v. Kerr, 47 Peun. St. 333; Evans ». Carey, 29 Ala. 99; Gaucher V. Gondrau, 20 La. An. 156 ; Conover v. Conover, 1 N. J. Eq. 403; Waples v. Lay- ton, 3 Hair. (Del.) 508 ; Bangs «. Hall, 2 Pick. (Mass. ) 368 ; Belles v. Belles, 12 N. J. L. 339 ; French v. Frazier, 7 J. J. Mar. (Ky.) 425 ; Oliver ti. Gray, 4 H. & G. (Md.) 204 ; Phelps v. Sleeper, 17 N. H. 332 ; Hunter v. Kittredge, 41 Vt. 359 ; Steele v. Towne, 28 id. 771. " If," said Shaw, C. J., in Sigourney v. Drury, 14 Pick. (Mass.) 390, "more than six years have elapsed since the making, of the orig- inal promise, or since the cause of action thereon accrued, it must appear that the defendant has made a new promise to pay within six years. Such promise may be express or implied, and a jury will be au- thorized and bound to infer such promise, from a clear, unconditional, and unqualified admission of the existence of the debt, at the time of such admission, if unaccom- panied with any refusal to pay, or declara- tion indicative of any intention to insist on the statute of limitations as a bar." This language necessarily implies that the most unqualified admission of the exist- ence of a debt will be insufficient to sustain recovery, if accompanied by ex- pressions showing an intention not to pay it, or to rely on the statute for protection. The same rule prevails in the Supreme Court of the United States, where it has been repeatedly determined that evidence of the confessions of the defendant that the debt still subsists, will not render him liable, when more than six years have 180 STATUTES OP LIMITATION. [CHAP. vn. consideration of tlie past debt ; ^ and a clear admission of a debt being evidence, if unrebutted, of a new promise to pay sufficient to avoid the elapsed since the cause of action accrued, unless they are unq^ualified by any expres- sions inconsistent with an intent of pay- ment. This doctrine was held by Mak- sHAiL, C. J., in Wetzell 11. Bussard, 11 Wheat. (U. S.) 315, and still more strongly laid down in the subsequent case of Moore V. Bank of Columbia, 6 Pet. (U. S.) 92. It was there said, that to take a case out of the- statute, "where there is no express promise, there must be an nnqualified and direct admission of a subsisting debt which the party is willing to pay," and that if there are "accompanying circumstances which repel the intention to pay," the plaintiff cannot recover. A new promise is held necessary, and on the maxim, expressum fadt cessare taci- turn, the fullest acknowledgment of a debt is not permitted to raise a legal promise of payment, when accompanied with expres- sions inconsistent with an intention to revive the obligation which the statute has extinguished. Fries v. Boisselet, 9 1 Phillips V. Phillips, 3 Hare, 281. An acknowledgment must go to the fact that the debt is still due, Clementson jj. Wil- liams, 8 Cranch (U. S.), 72; and in addi- tion to that, there must be either an express promise to pay, or circumstances from which an implied promise may fairly be presumed, Moore v. Bank of Columbia, 6 Pet. (U. S.) 86. If there is no express promise, but a promise is to be raised by implication of law from the acknowledg- ment of the party, such an acknowledg- ment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. If there are accompanying circum- stances which repel the presumption of a promise or an intention to pay, if the ex- pression is equivocal, vague, and inde- terminate, leading to no certain conclusion, but at best to probable inference, which may affect different minds in different ways, they ought not to go to a jury as evidence of a new promise to revive the original cause of action. Any other course would open all the mischiefs against which the statute was intended to guard innocent persons, Wetzell V. Bussard, 11 Wheat. (U. S.) 309; Bellu. Morrison, 1 Pet. (U. S.) 351; and an acknowledgment Of the original cause of action, accompanied by a refusal to pay, unless compelled by law, will not take the case out of the statute of limita- tions. Jenkins v. Boyle, 2 Cranch (U. S. C. C), 120. Any offer on the part of the debtor operates to remove the bar of the statute of limitations, which, fairly inter- preted, amounts to' a promise to pay, or to an acknowledgment of the debt or of some debt; as if the debtor says: "I will pay, if the demand is proved." If anything is added which negatives a promise of pay- ment, or an acknowledgment of a debt, it must be consloered as qualifying every ex- pression ;■ as if A. says he owes the debt, " but will not pay it, and will av-ail him- self of the statute of limitations." And if the promise is conditional, the remedy is not revived unless the condition is per- formed. Bead v. Wilkinson, 2 W'ash. (IT. S. C. C. ) 51i. An action may be re- vived, after the statute has barred it, either by a clear and unconditional acknowledg- ment of the debt, from which the law can imply a promise to pay, or by a conditional acknowledgment. In the latter case, the liability attaches, under the conditions. Kampshall v. Goodman, 6 McLean (U. S.), 189. Where an acknowledgment of a debt is connected with any condition which shows there was no intention to pay the debt, it does not take the case out of the statute. If the acknowledgment of the debt is coupled with a propo.sition to pay it partly in money and partly in property, the payment can only be enforced on the terms proposed. The original debt is not revived, and it is considered only as afford- ing a good consideration for the new prom- ise. Lonsdale v. Brown, 4 Wash. (U. S. C. C. ) 148. For an offer of compromise, not sufficient to take a case out of the stat- ute of limitations, see Neil v. Abbott, 2 Cranch (TJ. S. C. C.\ 193; Ash v. Hay- man, id. 452; Bank of Columbia v. Sweeny, 3 id. 293. §68.] ACKNOWLEDGMENTS. 181 statute, it follows that three questions will usually arise as to anj' alleged acknowledgment : First, is there an admission of the debt in S. & R. (Perm.) 128 ; Church .;. Feterow, 2 Penn. 305 ; Hogan v. Bear, 5 Watts (Penn.), Ill ; Berghaus v. Calhoun, 6 id. 220; Allison v. James, 9 id. 381; Hayi). Kramer, 2 W. &S. (Penn.) 138; Gilkyson V. Larue, 6 id. 217. The same rule pre- vails in most of the other States, and there can he no recovery in cases harred by the statute, without such an ac- knowledgment of the ohligation of the defendant, as to constitute a new cause of action when the suit is hrought in debt, or raise a new promise by impli- cation when it is in assumpsit. Bromwell V. Buckman, 7 Blackf. (Ind.) 537; Rob- bins V. Farley, 2 Strobh. (S. C.) 348; Dick- inson V. Conway, 5 Ga. 486; M'Lellan v. Albee, 17 Me. 184; Pray v. Garcelon, id. 145; Porters. Hill, 4 id. 41; Perleyi). Lit-- tie, 3 id. 97; Ventris v. Shaw, 14 N. H. 422; Shaw v. Newell, 1 R. I. 488; Fry v. Kerk, 4 G. & J. (Md.) 609; Ten Eyck v. "Wing, 1 Mann. (Mich.) 40; Taylor v. Stid- man, 11 Ired. (N. C.) 440; Sherrodf. Ben-- nett, 8 id. 309 ; Cross v. Conner, 14 Vt. 398; Phelps v. Stewart, 12 id. 263; White V. Dow, 23 id. 300; Brainerd v. Buck, 25 id. 573 ; Ayres ii. Richards, 12 111. 146; Exeter Bank v. Sullivan, 6 N. H. 132; Tillet 0. Linsey, 6 J. J. Mar. (Ky.) 337; Head v. Manners, 5 id. 255 ; Hamson v. Handley, 1 Bibb (Ky.), 443; Gray v. Law- ridge, 2 id. 285. The admission must not only be un- qualified in itself, but there must be nothing in the attendant acts or declara- tions of the defendant to qualify it, or rebut the inference of willingness to pay, to which an unqualified admission natu- rally and primarily gives rise. Thus, in Eackham v. Marriott, 2 H. & N. 195, in answer to an application for payment of a debt, the debtor wi-ote as follows: "I do not wish to avaU myself of the statute of limitations to refuse payment of the debt. I have not the means of payment, and must crave a continuance of your indul- gence. My situation as a clerk does not afford me the means of laying by a shil- ling; but in time I may reap the benefit of my services in an augmentation of salary that may enable me to propose some satis- factory arrangement. I am much obliged to you for your forbearance." It was held in the Exchequer Chamber, aflHrming the judgment of the Court of Exchequer, that the letter contained no sufficient acknowl- edgment or promise to take the case out of the statute of limitations. Cookbuen, C. J., in rendering the opinion of the court, said: "We are all agreed that the judgment of the Court of Exchequer ought to be affirmed. There is here an aclmowledgment of a debt, but not an ac- knowledgment coupled with »■ promise to pay, either on demand, or at a future period which has elapsed, or on a condi- tion which has been fulfilled. An ac- knowledgment without a promise is not sufficient to take a case out of the statute of limitations. Looking to the current of authorities, and more especially to the last case on the subject, Smith v. Thorne, 18 Q. B. 134, and being of opinion that the principle is applicable to the present case, we think that the acknowledgment must amount to a promise to pay either on re- quest, or at a future period, or on a condi- tion. Here there is a mere expression of a hope to make some satisfactory arrange- ment, not an acknowledgment coupled with a promise to pay. And to remove the bar of the statute, the promise must either be immediate and unconditional, or proof must be given that the conditions, if any, have been accepted and fulfilled, The Ken- sington Bank v. Patton, 16 Penn. St. 479 : but the admission or assumption of an imme- diate legal liability will be sufficient with- out a promise to pay immediately, for otherwise no debt could be revived, unless the debtor had the cash about him, or where he could lay his hands on it at once, Shitler v. Bremer, 23 Penn. St. 413; Zach- ariasB. Zacharias, id. 452; Steele 1;. Towne, 28 Vt. 777. To take the case out of the statute, the acknowledgment must be clear and unequivocal; for since it acts, not by reviving the old promise, but by creating a new one, it must be an acknowledgment from which this new promise may be im- plied. Hurst'!). Parker, 1 B. & AM. 92; Phillips V, Phillips, per Wigiiam, V. C, 3 Hare, 281; Buckmaster v. Russell, per 182 STATUTES OF LIMITAXION. [chap. vrl. question? second, is such admission narrowed by any qualification which rebuts the presumption of a promise, or subject to any condition ou the fulfiknent of which the implied promise is dependent? and, Williams, J., 10 C. B. n. s. 749. If, therefore, there is anything in the language inconsistent with that intention, the stat- ute is not satisfied. The acknowledgment must he in direct terms. Cockrill v. Sparke, 1 H. & C. 699. There are two classes of cases upon this subject : the one where there has been an absolute and uncondi- tional acknowledgment of the debt, though with an appeal to the forbearance of the creditor ; the other where the acknowledg- ment is limited by some qualification or condition. In both cases the debt is taken out of the statute; for if the acknowledg- ment is distinct, a promise to pay is im- plied; but if the acknowledgment is simple and absolute, the promise implied is a promise to pay on request; if conditional, a promise to pay according to the condi- tion. Tanner o. Smart, 6 B. & C. 603; Smith V. Thome, per Parke, B., 18 Q. B. 143. The former class is represented by Comforth v. Smithard, 5 H. & N. 13, where the words, "I am ashamed the ac- count has stood so long," were held to be a sufficient acknowledgment, and not to be limited by words following them which asked for time; and the fact relied on in that case, that the letter was written before the debt was barred, when the debtor was not in a position to im- pose terms, cannot be reasonably supposed to have meant to restrict his promise. The remarks of Beamwell, B., in Sidwell v. Mason, 2 H. & N. 310, fairly illustrate the second class. He says: "It seems to me a mistake has been made in several cases with respect to the expression of hope, in holding that, because along with an un- conditional acknowledgment of a debt a man expresses a hope to be able to do that which he was legally obliged to do, sach an acknowledgment is not suffi- cient." This doctrine is also applied in and aptly illustrated by a Pennsylvania case, Miller v. Baschore, 83 Penn. St.'356, in which the plaintiff relied on a letter as follows, to take the debt out of the statute : — PrilLADELPHiA, March 23, 1869. Mks. Catharine Baschore: I have received a letter from you some time ago, asking of me to let you know what I intended doing with balance of a note I owe you. It is hardly necessary to tell you that I had a great deal to pay when I failed, for you know that I have paid off many of my old debts, and calcu- late to pay all I owe. Just now I cannot pay you anything, for one reason, I com- promised with John Geo. Seltzer to pay him in instalments of which I have paid one, and another is coming due on the first of April, which J must somehow arrange, and then I have to pay him one more note which comes due April 1, 1870, and after he is paid I will pay you all I owe you, and if I can do anything for you before that time I will do so. You need not trouble yourself about me that I will not pay you, for I expect to pay all I owe. If you think I am not telling yon the truth, yon can ask J. G. Seltzer himself. I remain your friend, John W. Miller. The jury rendered a verdict for plain- tiff, and it was set aside by the Supreme Court, on the ground that the letter was not a sufficient acknowledgment. Gor- don, J., said : " The evidence was %ot sufficient to relieve the claim of the plain- tiff below from the effect of the statute of limitations. In order to effect such a result there must be a clear and definite acknowledgment of the debt, a specifica- tion of the amount due, or a reference to something by which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay. In the ease under consideration the acknowledg- ment and undertaking of the defendant lack these essential characteristics." A third class of cases, in which it has been held that there has been no sufficient ac- knowledgment, is illustrated by Rackham v. Marriott, 2 H. & N. 196, and is charac- terized by the fact that in no part of the document is there any distinct acknowl- edgment of the existence of the debt .§ 68.] ACKNOWLEDGMENTS. 183 third, if there is a condition, has it been satisfied? On the first ques- tion there is considerable liberality in construing a reference to a debt as an admission. Thus, where the admission was in the following teiTQS, " I am ashamed the account has stood so long," it was held to be a good acknowledgment.^ In another case,^ the debtor wrote as fol- lows : "I hope to be in Hampshire very soon, when I trust every- thing will be an-anged with W. [the creditor] agreeable to her wishes ; " and this was held a sufficient acknowledgment. And in a later English case' the two following letters written by the defendant were held sufficient to prevent the operation of the statute, although in fact no account was sent in, in compliance with the request in the letters. The letters were as follows : — January 13, 1872. Mb. Quincey, Sir, — I shall be obliged to you to send in your account made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders until this be done. I am, Sir, Your humble servant, J. Sharpe. February 19, 1872. Mr. Quincey, Sir, — You have not answered my note. I again beg of you to send in your account, as I particularly require it in the course of this week. To oblige, Sir, Yours, &c., Jno. Shakpe. Thus it vrill be seen that an admission of the debt will be sufficient, although the exact amount payable is disputed, or remains to be proved.* But in all cases the acknowledgment must be in terms so 1 Comforth v. Stnithard, 5 H. & N. 13. when it should have heen,'" Phelps v. * Edmonds v. Goater, 15 Beav. 415. Willianison, 26 Vt. 230. So, where pay- ' Quinoey v. Sharpe, W. N. 1876, 72. ment was demanded of a defendant, who * CoUedge v. Horn, 3 Bing. 119; Gard- said : "I supposed it was paid by White, ner v. M'Mahon, 3 Q. B. 561 ; Sidwell v. hy an arrangement ; tell your father to put Mason, 2 H. & N. 306. Where defendant White up to pay it; if he does not, I shall said of a note, "that he had signed the have to pay it." Held, that this was an. same with his son, and that in the end he admission of a continuing liability, 'and, thought he should have it to pay," it was with proof that White had not paid, took held that this was an unqualified acknowl- the case out of the statute of limitations, edgment that the note was signed by him, Hayden v, Johnson, 26 Vt. 768. But where that it was still unpaid, that his liability a request being made to a defendant to pay was then subsisting, and tliat this acknowl- a note as he had agreed to do, he answered, edgment took the case out of the statute that "folks do not always do as they of limitations ; and the case is not varied agree,'' it was held that this was not by the expression, " that enough had been evidence of a new promise sufficient to paid to pay the debt, if it had been paid take the note out of the operation of the 184 STATUTES OF LIMITATION. [chap. vn. distinct and unqualified that a promise to pay upon request or at some fixed time may reasonably be inferred from it.^ It must be clear and explicit, and not incumbered with any conditions.^ statute. Douglass v. Elkins, 28 N. H. 26. But where the maker of a note says to the payee, that if he wiU wait awhile he will pay the uote, and that he will pay when he '* makes a raise," not being at the time in a. condition to pay, the note will he taken out of the statute. Homer i). Starkey, 27 111. 13. A promise by the defendant, that he will settle with the plaintiff as soon as he receives his pay for certain work, is a conditional promise ; and does not waive the statute unless it is proved that he has received his pay. MuUett v. Shrumph, 27 111. 107. In answer to an application for a debt barred by the statute of limitations, the defendant wrote: "I have received a letter from Messrs. P. & L., solicitors, requesting me to pay you an account of £40 9s. 6d. I have no wish to have anything to do with the lawyers ; much less do I wish to deny a just debt. I cannot, however, get rid of the notion that my account with you was settled in 1851 ; but as you declare it was not settled, I am willing to pay you £10 per annum until it is liquidated. Should this pro- posal meet with your approbation, we can make arrangements accordingly." Held, that this was not such an absolute unquali- fied acknowledgment and unconditional promise to pay as to take the case out of the statute. Buckmaster w. Eussell, 10 C. B. N. s. 745. An action of debt upon a promissory note is not taken out of the statute of limitations by an acknowledg- ment made by the defendant, within six years, that the debt was honest. Kice v. Wilder, i N. H. 336. The words, "the debt is an honest one, but I have paid it," are not sufficient to take a debt out of the statute. Tichenor i;. Colfax, 4 N. J. L. 153. 1 Oakson v. Beach, 36 Iowa, 171 ; Smith V. Fly, 24 Tex. 346 ; Brown v. State Bank, 10 Ark. 134; Watkins o. Stevens, 4 Barb. (N. Y.) 168; Bloodgood v. Braen, 8 N. Y. 362. In some of the cases it is said that the acknowledgment must be an unequivocal and positive recognition of a subsisting debt, which the party is liable and willing to pay. Purdy v. Austen, 38 "Wend. (N. Y.) 187; Allen v. Webster, 15 id. 284; Loomis v. Decker, 1 Daly (N. Y. C. P.), 186. The early cases in New York, however, were quite conflicting, and inconsistent with the rule as stated. Thus, in Danforth v. Culver, 11 Johns. (N. Y. ) 146, where the defendant admitted the ex- ecution of the note, but said it was out- lawed, and he should plead the statute, the acknowledgment was held insufficient. But in a later case, Murray v. Carter, 20 2 A new promise is requisite to remove the bar of the statute of limitations, and although it will be implied by the law, from an unqualified acknowledgment of the existence of the debt, yet such will not be the case when the acknowledgment is qualified, nor when it is accompanied with an express declaration of an inability or unwilliugness to pay. Fries v. Boisslet, 9 S. & E. (Penn. ) 128 ; Church v. Fete.row, 2 Penn. 301 ; Hay u. Kramer, 2 W. & S. (Penn.) 138 ; Bailey v. Bailey, 14 S. & R. (Penn.) 195 ; Bangs v. Hall, 2 Pick. (Mass.) 368 ; Bradley v. Field, 3 Wend. (N. Y.) 272; Hancock v. Bliss, 7 id. 267; Allen V. Webster, 15 id. 289 ; Gaylord v. Loan, id. 314; Bailey v. Crane, 21 id. 324; Danforth u. Culver, 11 Johns. (N. Y.) 146. There must be nothing in the lan- guage used by the debtor that repels the inference of a promise to pay; if there is, the acknowledgment is insufficient. Thus, if a debtor pays or promises to pay a part of his debt, under an agreement with his creditor that it shall be in full satisfaction of the whole claim, such payment or prom- ise to pay will not he sufficient to prevent the operation of the statute of limitations upon the balance of the debt. Bowker v, Harris, 30 Vt. 424. So where a debtor, while denying the justness of an account, said that, ' ' if his creditor would swear to it, he would pay it," and "that if it was just, he would pay it," it was held that these were not such acknowledgments as would take the debt out of the statute of limita- §68.] ACKNOWLEDGMENTS. 185 It is not necessarj' that the promise should be actual or express, pro- Johns. (N. Y.) 576, where the claim was admitted to he subsisting and unsatisfied, but the defendants explicitly declared that they did not regard themselves as liable thereon because of the lapse of time, and declared their intention to plead the stat- ute in case their offer of settlement was refused, it was held sufficient to remove the bar. In some of the cases it is said that the acknowledgment must be so full and precise as to enable the court to apply the terms of it exactly as the party intended they should be applied, Suter v. Sheeler, 22 Penn. St. 308 ; Shitler v. Bremer, 23 id. 413; Miller v. Baschore, 83 id. 356; Harbold 1). Kuntz, 16 id. 210; Webster u. Newbold, 41 id. 482; Wolfensberger v. Young, 47 id. 516 ; Strickland v. Walker, 87 Ala. 385 ; Smith v. Fly. 24 Tex. 345 ; Evans v. Carey, 29 Ala. 99 ; Yaw v. Kerr, 47 Penn. St. 333 ; Head v. Manners, 6 J. J. Mar. (Ky.) 255 ; Bell v. Morrison, 1 Pet. (U. S.) 351 ; Newcomb v. Niel, Hai-p. (S. C.) 355 ; Harrison v. Handley, 1 Bibb (Ky.), 443 ; and of such a character that a promise to pay can be fairly and naturally tions. Goodwin v. BuzzeU, 35 Vt. 9. So where B., having failed, carried on business in the name of A., though in fact the busi- ness was his own. He gave a note to G. , signed as agent, after A. had forbidden him to give notes without leave. G., several years afterward, took the note to A. and asked him to pay it. A. replied that 6. "ought to have his pay, that it was right he should have it, but that he (A.) had lost a great deal in the business, and was not worth anything, and he could not pay it," It was held that this was not such an ac- knowledgment as took the note out of the statute of limitations. Galpin v. Barney, 37 Vt. 627. The naked acknowledgment of an existing liability is not such a decla- ration of willingness to remain liable as to imply a promise to pay. Thus, where the defendant, on being requested by the plain- tiff to renew notes on which the statute of limitations had run, replied; "I will come up soon and have a general settlement of accounts, and if all accounts are all right, other matters will be all right," there being no "other matters" between the parties implied, Moshier v. Hubbard, 13 Johns. (N. Y.) 510; Chambers v. Garland, 3 Green (Iowa), 322; Wakeman V.Sherman, 9N.Y. 88 ; Young v. Monpoey, 2 Bailey (S. C), 278 ; Moore v. Bank of Columbia, 6 Pet. (U. S.) 86 ; Pritchard ■!>. HameD, 1 Wis. 131 ; Sands v. Gelston, 15 Johns. (N. Y.) 511; Berghaus w. Calhoun, 6 Watts(Penn.), 219 ; Ash v. Patton, 3 S. & R. (Penn.) 306; Grant v. Ashley, 12 Ark. 762. An express promise, except where the statute ex- pressly so provides, is not necessary. It is enough if the admission of liability is such that a promise to pay can be implied. Burton u. Wharton, 4 HaiT. (Del. ) 296 ; Elliott V. Leake, 5 Mo. 208 ; Lee v. Polk, 4 McCord (S. C), 215; Keener v. CruU, 19 111. 189 ; Bullock «. Smith, 15 Ga. 395; Harwell v. McCuUoch, 2 Overt. (Tenn.) 275. The acknowledgment must be con- sistent with a promise to pay. Guier v. Pierce, 2 Browne (Penn.), 35; Bailey v. Bailey, 14 S. & R. (Penn.) 195; McClel- land V. West, 59 Penn. St. 487. If there is an acknowledgment of a subsisting debt, and nothing to rebut the inference of an than the notes; and, on a repetition of the request a year afterwards, replied: "We have a long string of accounts to look over ; if I find that all right and satisfac- tory, the notes will be all right." Brayton V. Rockwell, 41 Vt. 621; Higdon v. Stew- art, 17 Md. 105; Parsons v. Northern, &c. Iron Co., 38 111. 430; Cambridge v. Hobart, 10 Pick. (Mass.) 232; Penn v. Crawford, 16 La. An. 255 ; Thornton v. Crisp, 22 Miss. 52; Kelly v. Sanborn, 9 N. H. 46; Butterfieldi). Jacobs, 15 id. 140; Brackett V. Mountfort, 12 Me. 72; Fischer v. Hess, 9 B. Mon. (Ky.) 614; Conwell i>. Buchan- an, 7 Blackf. (Ind.) 537; Sloan v. Sloan, 11 Ark. 29; Mills?;. Taber, 5 Jones (N. C.) L. 412; Ballingerw. Barnes, 3 Dev. (N. C.) L. 460 ; Gilmer v. McMurray, 7 Jones (N. C.) L. 479; Taylor v. Stedman, 11 Ired. (N. C.) L. 411. A promise to re- move the bar of the statute of limitations must be a promise to pay a debt. A prom- ise to settle with the claimant is not suffi- cient. Bell v. Crawford, 8 Gratt, (Va.) 110. A letter from the defendant to the plain- tiflf in which he denies that he was ever 186 STATUTES OP LIMITATION. [chap, vn. vided the other necessary facts are shown. A clear, distinct, and un- intentiou to pay it, it is sufficient. " Tlie slightest acknowledgment," says Loed Mansfield, in Trueman v. Feuton, 2 Cowp. 550, " has been held sufficient, as saying, 'prove your debt, and I -will pay you,' ' 1 am ready to account, but nothing is due you.' And much slighter acknowl- edgmjents than these will take the debt out of the statute." " I am sure 1 don't owe you; but if I do, I am willing to pay." Steele v. Towne, 28 Vt. 771 ; Paddock v. Colby, 18 id. 485. " I promise not 1o plead the statute of limitations." Stearns V. Stearns, 32 Vt. 678 ; Lowry v. Dubois, 2 Bailey (S. C), 425 ; Glenn v. M'Cul- lough, Harp. (S. C. ) 484 ; Lindsay v. Jameson, 4 McCord (S. C), 93. "If the note has not been paid, I will settle it." Sothoron v. Hardy, 8 G. & J. (Md.) 133 ; Richmond i). Fugna, 11 Ired. (N. C. ) L. 445. Where a defendant said, on produc- tion of a note against him, " It 's as good as money," Arnold v. Dexter, 4 Mas. (U. S. ) 122; or, "my notes never out- law," but that there were some other mat- ters to be settled, and he wonld be down in a few days and settle it, Phelps v. Sleeper, 17 N. H. 332, — have aU been hfeld sufficient. In Edmonds ®. Goater, 15 Beav. 415, the defendant wrote, in answer to an application for payment of a debt, ' ' I hope to be in Hampshire very soon, when I trust eveiything will be arranged with W. (the creditor) agreeable to her wishes ; " and that was held by Sl» J. Eomilly, M. E., a sufficient promise. So in Collis ■i;. Stack, 1 H. & N. 605, the following answer to an application for payment was held sufficient : " I shall repeat my assur- ance to you of the certainty of your being repaid your generous loan. Let matters remain as they are for a short time longer, and all will be right. The works I have been appointed to, but they are not yet worked with the full compliment of labor ; this term will decide the matter." Tan- ner V. Smart, 6 B. & C. 603, put a condi- tional promise, with proof of ability to pay, on the same footing as an absolute promise. liable to the plaintiff's demand, but states that another person is responsible, by whom he takes it for granted payment has not been made, and of whom he offers to furnish the plaintiff with evidence to re- cover, will not avoid the act of limitations. Brown v. Campbell, 1 S. & K. (Penn.) 176. Where the defendant admits that he has received the money, which the plaintiff claims, but denies the validity of the claim, such acknowledgment is not evidence of a new promise- so as to take a ease out of the statute of limitations. Sands v. Gelston, 15 Johns. (ISr. Y) 511. Marshall v. DoUi- ber, 5 Conn. 486; Bell v. Rowland, Hard. (Ky.) 301 ; Ferguson v. Taylor, 1 Hayw. (N. C.) 92. Where the defendant says, that if the plaintiff has a claim either at law or equity, he will compromise the business, or submit it to arbitration, but, at the same time, denies that he has any claim either at law or equity; this is not suffi- cient to take the case out of the statute. Sands v. Gelston, 15 Johns. (N. Y. ) 84. In this case Spenobe, J,, said: "I am bound by authority to consider the acknowledg- ment of the existence of a debt within six years before the suit was brought, as evi- dence of a promise to pay the debt. But I tusist that if, at the time ef the acknowl- edgment of the existence of the debt, such acknowledgment is qualified in a way to repel the presumption of a promise to pay, then it will not be evidence of a promise sufficient to revive the debt, and take it out of the statute. In consonance with this distinction, I take it, the case of Dan- forth V. Culver, 11 Johns. (N. Y.) 146, and Lawrence v. Hopkins, 13 id. 288, were decided in this court." Roosevelt V. Mark, 6 Johns. (N. Y.) Oh. 290. An offer by a defendant to compromise a suit, which is rejected, cannot be made use of to take the case out of the statute of limita- tions. Lawrence ®. Hopkins, 13 Johns. (N. Y.) 288 ; Murray -o. Coster, 4 Cow. (N. Y.) 635. An acknowledgment to take a case out of the statute of limitations must be such a one as is consistent with a prom- ise to pay. Guier v. Pearce, 2 Browne (Penn.), 36 ; Read v. Wilkinson, 2 id. 48j Scull V. Wallace, 15 S. & R. (Penn.) 231. The statute of limitations is a good plea §68.] ACKNOWLEDGMENTS. 187 equivocal acknowledgment of a debt is suflacient to take a. case out of in bar, in a court of equity as well as at law, unless there " be something special in the case, or some new equity to form an exception to this general rule; " and where to a suit at law the defendant had pleaded the statute, and the plaintiff filed a bUl of discovery, with a view to enable him to show a promise within six years, it was held that tho defendant was not botmd to discover anything that would destroy the effect of his plea at law. Lansing v. Starr, 2 Johns. (N. Y.) Ch. 150, 161; Kanes V. Bloodgood, 7 id. 90. In the case of Tichenor v. Colfax, 3 N. J. L. 155, Kiek- PATRICK, C. J., said: " The pleading of the statute of limitations never calls in ques- tion the justness of the debt originally; it only raises the presumption that the same has been satisfied or paid; and to this pre- sumption the statute gives effect by taking away the party's remedy to recover. For the defendant, therefore, to say that the debt was just, but that he had paid it, was no admission of, or assumption to pay, an existing debt, but the contrary ; and notwithstanding such acknowledg- ment he might well put himself upon the statute to protect him from further vexation." An acknowledgment of the original jus- tice of the claim is not sufficient; " it must go to the fact that it is still due." Cl«m- entson v. Williams, 8 Cranch (U. S.), 72, 74; Wetzell v. Bussard, 11 Wheat. (U. S.) 814, 315; Thompson v. Peter, 12 id. 567 ; Bell V. Morrison, 1 Pet. (U. S.) 351; Bangs V. Hall, 2 Pick. (Mass.) 368; Baxter, Admr., &c. ■!). Penniraan, 8 Mass. 133 ; Lord v. Shaler, 3 Conn. 133; Marshall v. Dalliber, 5 Conn. 480 ; Tichenor v. Colfax, 3 N. J. L. 153 ; Jones v. Moore, 5 Binn. (Penn.) 576; Cowan v. Magauran, 1 Wall. (U. S. ) 66; Harrison v. Handly, 1 Bibb (Ky.), 443, 445; Ormsby «. Letcher, Sid. 271 ; Bell v. Rowland, Hard. (Ky.) 301; Roosevelt v. Marks, 6 Johns. (N. Y.) 290. And the same rule holds as to acknowl- edgments to repel the presumption of pay- ment arising from lapse of time in cases not within the statute. Boyd v. Grant, 18 S. & R. (Penn.) 124. A mere indorse- ment made on a note by the plaintiff himself, without the knowledge of the de- fendant, or proof of payment of the sum indorsed, will not take the demand out of the statute of limitations. Whitney c Bigelow, 4 Pick. (Mass.) 110. Where the maker of a promissory note delivered goods to the holder to be sold, and the proceeds appropriated towards the payment of the note, and a sale of some of the goods was not effected until nearly six years after, it was held, that if the pro- ceeds were indorsed upon the note within a reasonable time, it would be considered, in reference to the statute of limitations, 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. Porter V. Blood, 5 Pick. (Mass. ) 54. In the case of Fuller v. Hancock, 1 Root (Conn.), 238, 241, the court said, that "an indorsement upon a bond doth not save it out of the statute of limitation." An agreement of a debtor that a settlement made by the cred- itor and a third person should be examined by either party, will not take a case out of the statute of limitations. Ormsby v. Letcher, 3 Bibb (Ky. ), 270. A vote passed at a town meeting, appointing a committee to " settle the dispute " between the town and the plaintiff, was held not to take the plaintiff's demand out of the statute of limitations. Fiske v. Needham, 11 Mass. 452. A debt which is barred by the statute is not revived by a clause in a wUl order- ing the testator's just debts to be paid. Smith V. Porter, 1 Binn. (Penn.) 209; Roosevelt v. Marks, 6 Johns. (N. Y.) Ch. 266. Creating a trust upon a personal estate by will, for the payment of debts, will not revive a debt barred by the statute of limitations. Campbell v. Sullivan, Hard. (Ky.) 17; Exparte Dewdney, Hxparie Sea- man, 15 Ves. 488; Exparte Roffey, 19 id. 470. A debt barred by the statute is not revived by a direction in the debtor's wUl, that certain property be sold, "and with the proceeds thereof, after paying my debts, that they redeem," &e. Walker v. Camp- bell, 1 Hawks (N. C), 304. A trust cre- ated by will for the payment of debts, by a general direction that all the testator's 188 STATUTES OP LIMITATION. [CHAP. Vn. the operation of the statute. It must be an admission consistent with a debts shall be paid, extends only to such as he was bound in conscience to pay; therefore, an undertaking which is merely nudum, pactum is not comprehended, and may be banned bj' the act of limitations. Chandler v. Hill, 2 H. & M. Va. 124. A provision in a will, that the money arising from the sale of the testator's personal property, after payment of his just debts, shall be applied to certain purposes, does not create a trust for the payment of the debts, nor take any debt out of the opera- tion of the statute. Brown v, Griffith, 6 Munf. (Va.) 450. In the c;a^e of Burke ■i;. Jones, 2 V. & B. 276, the Vice-Chan- eellor decided that a devise in trust for payment of debts does not revive a debt upon which the statute of limitations had taken effect by the expiration of the time before the testator's death. And in com- menting upon the argument urged, viz. that a contrai7 rule existed in equity, he said:' "No case has been cited within the period of half a century in which such a rule is stated as existing, except for the purpose of complaining of it. It was justly observed that those complaints are a recognition of the rule by very high au- thorities; and there is certainly consider- able authority for concluding that such a rule has been understood as prevailing, that a devise of real estate for the payment of debts would let in debts barred by the statute of limitations. It must, however, be remembered, that the last time it ap- pears in print, in the case of Oughterloney V, Earl Povvis, Amb. 231, Loed Hard- ■WIOKB did not consider it so established that it should be acted upon without con- sideration, expressing surprise how such a rule could be established. It has received the decided disapprobation of Lord Ken- yon and LoBD Alvanley ; and it is im- possible to read the judgment in Ex parte Dewdney, 15 Ves. 477, see p. 497, without perceiving the Lord Chancellor's disap- probation of such a rule. To the floating notion, which certainly has prevailed for a great length of time, countenanced by high authorities, tliat there is such a rule, must be opposed those authorities I have men- tioned; to which may be added the decla- ration of a judge very conversant with tlie law and practice of this court, that there is no such rule as to debts positively barred ; distinguishing the case where the time having commenced, the death occurs before it has run out, and then the trust would keep it alive. I have paused upon this case, not from any doubt of the prijiciple, but that I might have an opportunity of communicating with Loud Redesdale, and collecting all the information that could be obtained upon a question of such mag- nitude, involving a general rule of great importance upon a subject that must very frequently occur ; that it may be settled and publicly known if this clause is to have the effect that has been supposed, or, if not, that such a notion as to its opera- tion may no longer remain afloat. With this view, I have given the question all possible attention ; I have spared no pains in collecting every case in print, or that I could hear of, bearing upon it ; I have traced the history of this supposed rule to its foundation, and have examined to the bottom the authorities on which it has been supported, many in number, and some not very correctly reported, which I have compared with the Eegister's Book. I shall go through those authorities. The result is, that, though there are many dicta, there is not one case the facts of which are distinctly stated, deciding that a debt actually barred by the statute is revived merely by virtue of this clause, eith^ as to personal or real estate; and as to the former it has not been argued. In almost all the cases there was a recognition of the very debt, either express or by fair infer- ence ; or the death occurred before the statute had actually attached; and then, according to Lord Redesdale's opinion, a trust being created for creditors, the stat- ute cannot attach, and the lapse of time fomis no bar." In the case of Roosevelt v. Marks, ante, Kent, 0. J., cited with approbation the opinion of the Vioe-Chancellor in BurkB. V. Jones, and said: "This decision appears to me well founded upon principle, and upon the construction of the authorities, and to put an end to this litigious ques- tion." And he decided that a devise of real and personal estate for the payment §68.] ACKNOWLEDGMENTS. 189 promise to pay ; and if that condition exists, the law will imply a of just debts does not revive a debt barred by the statute of limitations. A testator devised a large real and personal estate to his wife and children; charged the portion of one of his sons with the payment of £1,500 sterling towards his debts; directed sundry tracts of land to be sold, and the moneys arising therefrom, as well as from loan-ofEce certificates, or otherwise (after payment of his just debts), to be equally divided among his six sons. On a bill brought by one of the creditors of the testator, the statute of limitations being pleaded, and the complainant not having shown that he came within any of the ex- ceptions of the act, it was held that the statute ought not to operate to prevent a recovery of so much of the specific fund as remained undisposed of, but that it would be a bar to a recovery out of the general fund. Lewis v. Bacon, 3 H. & M. (Va.) 89. The case of Swann v. Sewell, 2 B. & Aid. 759, was an action of assumpsit on a pro- missory note. Plea, 1st, the general issue; 2dly, the statute of limitations; but there was no plea or notice of set-oflF. It was proved that on the plaintiffs showing the defendant the note within six years, the latter said, "You owe me more money; I have a set-ofiF against it." Held, that that was not a sufficient acknowledgment within six years to take the case out of the statute of limitations. Hor.EOYD, J., said: "How can it be contended that an asser- tion by a defendant that he has a good defence is an acknowledgment of the debt? " Where a party revives a debt barred by the statute of limitations, by paying it into court, but at the same time refuses to pay interest, such payment of , the principal does not revive the claim for interest. CoUyeru Willcock, 4Bing. 315. The defendant, being arrested on a note, said that he owed the plaintiff the money and intended to have paid him, but that he had taken nngentlemanly steps to get it, and as he had taken these steps, he (defendant) would keep him out of it as long as he could. Held, that this was not such an acknowledgment as would take the case out of the statute of limitations. Fries v. Boisselet, 9 S. & R. (Penn.) 128. After suit brought on a promissory note, the defendant admitted he had given such a note, but said he had paid it. Held, that this was not such an acknowledgment of a subsisting debt as will avoid the plea of the statute of limitations. Smith v. Freel, Addis. (Penn.) 291. Though a slight acknowledgment of the debt, if suffi- cient to raise an implied promise to pay it, will take a case out of the statute, yet if the debtor qualifies his acknowledg- ment in such a manner as to show that it was his intention not to pay, the statute will take effect. Therefore, where a debtor, on being called on for payment of a pro- missory note more than six years after it became due, said, that as there had been no money transactions between himself and the plaintiff previous to or during the year 1812, he was surprised at the de- mand; that he owed him nothing on the account mentioned, and referred him to his final discharge under the act of 13th March, 1812, it was held, that the debt was barred by the act of limitations, not- withstanding the act of 1812 was uncon- stitutional and void. Hudson v. Carey, 11 S. & E. (Penn.) 10; Bailey v. Bailey, 14 id. 195; Eckert v. Wilson, 12 id. 393. A testator being indebted to one of his children, devised to her £50, to be paid at the expiration of ten years after his de- cease, and proceeded thus: "It is my fur- ther mind and will, that if any of my said children shall, after my decease, make any demand against my executors, for aiiy ser- vices they may have done or performed for me, in my lifetime, then instead of the bequest mentioned to be given to such child or children, so exhibiting any such demand or charge, I give the sum of fif- teen shillings apiece, and no more." In an action against the executor, by a child, for services rendered to the testator, to which the statute of limitations was plead- ed, the court held that the above clauses in the will did not prevent the statute of limitations from running. Cresman v. Caster, 2 Browne (Penn.), 128. In a South Carolina case, it appeared that Lance and Parker having unsettled accounts, Parker gave Lance a stipulation in these words: "If, in the settlement of accounts between Mr. Lambert Lance and 190 STATUTES OF LIMITATION. [chap. vn. promise without its having been actually or expressly made.' There myself, any balance should appear to be due him, I hereby assume payment thereof so as to prevent its being barred by the operation of the limitation act." Upon suit brought against Parker, he pleaded mm assumpsit infra quatuor annos ; and issue being taken upon the replication thereto, it was held, that this stipulation bound only for four years from its date, and that the statute might after that period be pleaded by the party who gave it. Lance v. Parker, 1 Eep. Const. Ct. (S. C.) 168. Where an account on its face is barred by the statute of limitations, but the plaintiff enters a credit of recent date, which the defendant disavows, such entry, without some further proof, will not take the case out of the statute. Taylor v. McDonald, 2 Kep. Const. Ct. (S. C), 178. A person had given a note against which the statute of limitations had run, and npon the note being presented to him for payment, seized it, saying, " I aip glad I have got my hands on it, I have paid it long ago." This is not such an acknowl- edgment as will take a case out of the statute. Gray v. Kernahan, 2 Rep. Const. Ct. (S. C.) 65. In the case of Coltman v. Marsh, 3 Taunt. 380, the defendant pleaded the statute of limitations ; the evidence given at the trial was, that the defendant had. said to the plaintiff, "I owe you not a farthing, for it is more than six years since ;" held, that this was not to be left to the jury as evidence of a sufficient acknowledgment to take a debt out of the statute of limitations. Hellings v. Shaw, 7 Taunt. 608. A pai-ty, on being asked for the pay- ment of his attorney's bill, admitted that there had been such a bill, but stated that it had been paid to the deceased partner of the attorney, who had retained the amount out of a floating balance in his hands. Quiere, whether in order to take the ease out of the statute of limitations, evidence is admissible to show that the bill had never in fact been paid in this manner. Semble, that such evidence is admissible, if at all, only where the defendant states the debt to be discharged by particular means, to which he refers with precision, and where he has designated the time and mode so strictly, that it is impossible it could be discharged in any other manner than that speeified. Beale v. Kind, 4 B. & Aid. 566. Where the defendant in an action on a, promissory note to which the defence was the statute of limitations,, had said that such note had been paid by the services of his wife in the dwelling-house 1 Hall V. Bryan, 50 Md. 194. But there must be something more than a mere men- tion of the debt, without questioning the in- debtedness. There must be an unqualified, direct admission of a present subsisting debt. Hanson t). Towle, 19 Kan. 273. It is well settled that an acknowledgment need not be wholly by words, but may be established by any act or words that necessarily pre- suppose or admit the existence of a debt and an obligation to pay it. Bamfield v. Tupper, 7 Exch. 27 ; Purdon v. Pur- don, 10 M. & W. 361. Thus, in the cases cited ante, as well as those following, the payment of interest was held to operate as an admission of a subsisting debt still due, sufficient to remove the bar of the statute. Sanford v. Hayes, 19 Conn. 591 ; Clement- son V. Williams, 8 Cranch (U. S.), 74 ; Lord V. Shaler,3Conn.l51. And this is so whether the interest accrued before or after the principal was barred by the statute. Frye- burgh V. Osgood, 21 Me. 176. But, pay- ment of the principal will not operate as an acknowledgment of the interest. Colly er V. Willcock, i Bing. 315. So a payment on account, or a part payment of the prin- cipal of a debt, will generally operate as an acknowledgment of the whole debt. Hooper V. Stevens, 4 Ad. & El. 71 ; Smith v. Sims, 9 Ga. 80 ; Sibley v. Lambert, 30 Me. 253 ; Eaudan o; Tobey, 11 How. (U. S.) 493 ; Strong V. McComiick, 5 Vt. 338 ; Turney 1). Dodwell, 3 El. & Bl. 136 ; Jones v. Jones, 21 N. H. 219 ; lUsley e. Jewett, 2 Met. (Mass.) 168 ; State Bank v. Waddy, 5 Ark. 348 ; Badger v. Arch, 10 Exch. 333. And generally all the attendant cir- cumstances should be considered in order to arrive at the real intention of the debtor by what he said. §68.] ACKNOWLEDGMENTS. 191 must not be any uncertainty as to the particular debt to -which the of the plaintiff, and the plaintiff proved that payment had not so been made, it was held that this did not amount to an acknowledgment of the debt sufficient to take it out of the statute. Bristol, J., in delivering the opinion of the court, said: " A debt being barred by the statute of limitations, the defendant is entitled to take advantage of it unless he consents to relinquish its protection, either expressly or by evident implication. The truth or fiilsehood of the defendant's declaration as to paying the demand appears to me immaterial to the true point of inquiry, which in all such cases should be, whether the defendant has, by an express or im- plied recognition of the debt, voluntai-ily renounced the protection of the statute. "We think this should depend on the de- fendant himself, and on his own declara- tions; not on disproving the truth of these declarations, and thereby converting what was intended as an absolute denial of any indebtedness into an acknowledgment of such debt, and a promise to pay it. It might as well be claimed, if a defendant denied the execution of a note barred by the statute of limitations, and the plaintiff could prove that he executed it, that the defendant had forfeited the protectidn of the statute. No intention to waive the protection of the statute can be inferred from the declarations of payment made by the defendant, even if those declarations are proved untrue. Marshall v. Dalliber, 5 Conn. 488; Bailey v. Bailey, 14 S. & R. (Penn.) 195. In an action of assumpsit for goods sold and delivered, and on the money counts, the defendant pleaded the general issue and the statute of limitations. The defendant paid money into court generally. Held, that such payment did not take the case out of the statute. The court said : ■"The payment into court was equivalent to saying so much is due and no more. You cannot from such a negative imply an affirmative. The plaintiff, therefore, with respect to the rest of his demand, was in precisely the same situation as if that sum had not been paid in. Long v. Grenville, 3 B. & C. 10 ; Shaddick «. Bennett, 4 id. 769." In the case of A'Court i>. Cross, 3 Bin^t. 329i the defendant being arrested on a debt more than six years old, said : "I know that I owe the money; but the biU that I gave is on * three-penny receipt stamp, and I will never pay it." Held, that this was not such an acknowledgment of the debt as would take the case out of the statute of limitations. Best, C. J., said: " I am sorry to be oTjliged to admit that the courts of justice have been de- servedly censured for their vacillating decisions on 21 Jac. I. o. 16. AVhen by distinctions and refinements, which. Lord Mansfield says, the common sense of mankind cannot keep pace with, any biunch of the law is brought into a state of uncertainty, the evil is only to be reme- died by going back to the statute; or, if it be in the common law, settling it on some broad and intelligible principle. But this must be done with caution, otherwise we shaU. increase the confusion that we at- tempt to get rid of; the authority of no one court is sufficient in such a case. I will therefore go no further to-day than I am authorized to go by the authority of modem decisions." " Christianity forbids us to attempt enforcing the payment of a debt, which time and misfortune have ren- dered the debtor unable to discharge. The legislature thought that if a demand was not attempted to be enforced for six years some good excuse for the non-payment might be presumed, and took away the legal powei-s of recovering it. 1 think, if I were now sitting in the Exchequer Chamber, I should say that an acknowl- edgment of a debt, however distinct and unqualified, would not take from the party who makes it the protection of the statute of limitations. But I shall not, after the cases that have been decided, be disposed to go so far in tlds court without consult- ing the judges of the other courts. There are many cases from which it may be col- lected, that if there be anything said at the time of the acknowledgment to repel the inference of a promise, the acknowl- edgment will not take a case out of the statute of limitations." In the case of Tanner •». Smart, 6 B. & C. 603, Lord Tentesden, C. J., said: "There are, undoubtedly, authorities that the statute is founded on tlie pre> 1S2 STATUTES OF LIMITATION. [chap. vn. admission applies. It must be so distinct and unambiguous as to sumption of payment, that whatever repels that presumption is an answer to the stat- ute, and that any acknowledgment which repels that presumption is, in legal effect, a promise to pay the debt; and that though such an acknowledgment is accompanied with only a conditional promise, or even a refusal to pay, the law considers the con- dition or refusal void, and considers the acknowledgment of itself an unconditional answer to the statute; and if these author- ities be unquestionable, the verdict which has been given for the plaintiff ought to stand, and the rule for a new trial ought to be discharged. I refer to the cases of Yea V. Fouraker, 2 Burr. 1099 ; Lloyd V. Maund, 2 T. K. 760 ; Bryan v. Horse- man, 4 East, 599 ; Leaper v. Tatton, 16 East, 420 ; Douthwaite v. Tibbutt, 5 M. & S. 75 ; Frost v. Bengough, 1 Bing. 266 ; Eowcroft t). Lomas, 4 M. & S. 457; Swan V. Sowell, 2 B. & Aid. 739; Mount- stephen i). Brooke, 3 B. & Aid. 141. But if there are conflicting authorities upon the point, if the principles upon which the authorities I have mentioned are founded appear, to be doubtful, and the opposite authorities more consonant to legal rules, we ought at least to grant a new trial, that the opportunity may be offered of having the decision of a court of error upon the point, and that for the future we may have a correct standard by which to act." And the rule for a new trial was made ab- solute. In assumpsit for fees as an attor- ney at law, the defendant pleaded the statute of limitations in bar of the action ; at the trial the plaintiff proved a letter re- ceived from the defendant after the ser- vices performed, but more than six years before the commencement of the suit, in which he promised to pay for the services claimed in this suit, and also proved that within six years past the defendant said to him, "If I owe yon anything on that claim I will pay you ; but I owe you noth- ing." Held, that this was not -sufficient evidence of a new promise to avoid the bar of the statute of limitations. Parley ■o. Little, 3 Me. 97. In an action of assumpsit for money due on an accountable receipt, the statute of limitations was pleaded, and the plaintiff, in order to take the case out ot the statute, called a witness, who proved that he called upon the defendant and showed him the receipt, and asked him if he knew any- thing of it, to which the defendant an- swered, "Yes, I know all about it." The witness then asked him for the amount, to which defendant answered, "It was not worth a penny, he should never pay it." He admitted his signature to the receipt. The witness said, " Perhaps you have paid it;" defendant answered, "No, never, he never had, and never would ; " and added, "Besides, it is out of date, and no law shall make me pay it." Held, that this evi- dence was not sufficient to charge the de- fendant with the debt, for there was no evidence, but the contrary, that the debt ever existed. Eowecroft v. Lomas, 4 M. & S. 457. A qualified admission by a party who relies on an objection, which would at any time have been a good de- fence to the action, does not take a case -out of the statute of limitations. De La Torre v. Barclay, 1 Starkie, 6. To a demand for the charges of preparing an annuity deed, the defendant said, "I thought I had paid it, but I have been in so much trouble since, that I really do not recollect it." The plaintiff answered, "You know the price of the annuity was paid you in a £1, 000 bank-note, which you changed at Badcock's." The defendant made no answer. Held, that this was not a sufficient acknowledgment of the debt to deprive the defendant of the benefit of his plea of the statute of limitations. Hel- lings V. Shaw, 7 Taunt. 608. A mere de- mand of a debt, without process, or any acknowledgment, is not sufficient to take the case out of the statute of limitations, Hodle V. Healey, 1 V. & B. 540. In the case of Scull v. Wallace, 15 S. & K. (Penn.) 231, the plaintiff below examined Scull, one of the defendants, as a witness, without objection. All the defendants pleaded the act of limitations ; and it was held that the plaintiff would not be permitted, for the purpose of avoiding that plea, to ask Scull whether it was his intent to plead Che act of limitations. And although the question was left undetermined, whether an administrator may charge the estate of §68.] ACKNOWLEDGMENTS. 193 remove all hesitation in regard to the debtor's meaning.' It is not his intestate, by refusing to plead the act of limitations, although his co-adminis- trator insists on pleading it, yet it was decided, that if one stands neutral the others may plead it. Tilghman, C. J., said: " A very important point was raised by the defendant's counsel, which it is unnecessary to decide, because it does not fairly arise from the evidence. This point was, whether one administrator may charge the estate by refusing to plead the act of limitations although his co-administrator insist on pleading it. But it is clear enough by the evidence that Mr. Scull, although he did not desire to plead the act, and did not think it proper that it sliould be pleaded, was determined to act in such a manner as should leave the widow of William Irwin at liberty to avail the estate of that plea if she judged it right to do so. Mr. M'Donald, a witness for the plaintiff, swore that Scull told him he had no doubt that the estate of Irwin was indebted to Wallace, but how much he could not tell. But in the same con- versation Scull obsei-ved that Mrs. Irwin was outrageous about Wallace's claim, and was determined to plead the statute of limitations. -She said she would not pay a cent of it. Scull said he would leave the matter to her altogether, and have nothing to do with it. And this was confirmed by Scull in his own testimony in the strongest terms ; for he swore that he never had an idea of depriving the other administra- tors of the benefit of the act, if they chose to avail themselves of it. There^ was^ no contradiction in the evidence on this point, and the defendant's counsel had a right to the court's opinion whether Scull's ac- knowledgment, taking it altogether, took , the case out of the act of limitations. The law has been well settled by repeated de- cisions of this court. The principle is this : A slight acknowledgment of an existing debt is sufBoiont to take the case out of the statute, because the jury may and ought to presume a new promise; but the acknowledgment is to be taken altogether, and if, on the whole, it is inconsistent with a new promise, no new promise shall be implied, and the statute .shall bar. This ia such plain common sense that it is vor,. I.-13 a wonder any opinion should ever have been held to the contrary. Now, to apply the law to the evidence in this case, Mr. Scull's confession, considered in toto, is altogether inconsistent with a promise to pay ; because he expressly declared that Mrs. Irwin was determined to plead the statute, and he would leave the matter to her, and would have nothing to do with it. I am at a loss for any argument to show the inconsistency of this acknowl- edgment with a promise to pay. The meaning is so plain that it is impossible to. misunderstand it." In England, all questions about the' sufficiency of acknowledgments to revive claims barred by the statute of limitations, were put at rest by Stat. 8 Geo. IV. 1 Mercuk, J., in Palmer v. Gillespie, 90 Penn. St. 363. In Fiske v. Hibbard, 45. N. Y. Superior Ct. 331, the debtor wrote the plaintiff as follows : " I am well aware- that I owe you for money borrowed. As you have the figures, I wish you would at your leisure make out a statement of what you consider my indebtedness to you,, and send it to me, resting assured that in all money matters I desire to act honestly toward everybody ; " and it was held that this was a sufficient acknowledgment of a present indebtedness from which a promise^ to pay may be implied. In Webb i'. Car- ter, 62 Ga. 415, a letter from the defend- ant to the plaintiff enclosing, five dollars, to be indorsed on the note, and stating,, " My son James will wind up my business, with instructions to pay you," was held to. be a written acknowledgment sufficient to support a promise to pay. But in Eckford V. Evans, 56 Miss. 18, a letter as follows, "I am going to Aberdeen to-morrow, and will send fifty dollars, which is all I can spare at pres'ent," was held too indefinite,, and not sufficient as an acknowledgment of the debt in suit to affect the operation of the statute. But in Bayliss v. Street,. 51 Iowa, 627, a letter addressed by the' maker of the note in suit, stating that he- "hoped to pay," and that in case of his. death he had provided for payment out o£ his life insurance, was held sufficient. In Treadway v. Treadway, 5 111. App. 478, a debtor was asked by his creditor to give 194 STATUTES OF LIMITATION. [chap. vn. essential that tlie amount of the debt should be stated or even referred to. It is sufficient if the acknowledgment admits something to be due upon a specific claim, and parol evidence is admissible to prove the amount ; ■" and the same is also true as to the nature of him his note for a debt barred by the statute, to which he replied that " it makes no difference, it is all in the family ;" and it was held not sufficient to found a prom- ise upon. Fries v. Boisselet, 9 S. & K. (Penn.) 128 ; Bailey v. Bailey, 14 id. 195; Allison V. James, 9 Watts (Penn.), 380; Gilkyson v. Lame, 6 W. & S. (Penn.) 213 ; Hazlebaker v. Beeves, 9 Penn. 264 ; Davis u. Steiner, 14 Penn. St. 275 ; Johns V. Lantz, 62 id. 324. In the last case, it was said, " No case, however, has ever gone the length of saying that there must be an express promise to pay in terms. " Watson V. Sterm, 26 Penn. St. 121, and Senseman •«. Hershman, 84 id. 83, de- clare the rule to be as stated in the oases cited. Miller v. Baschore, 85 id. 356, was not intended to ovemile the long line of preceding cases. The generality of the language therein used must therefore not be understood as requiring an express promise, but a promise that may be clearly implied. A promise by the debtor, when spoken to about the debt by his creditor, that he would settle it, would pay it, would see to it that it was correct, was held sufficient to take the debt out of the statute. Palmer v. Gillespie, ante. In Bloom V. Kern, 30 La. An. part 2, 1263, it was held that letters from the debtor to the creditor, declaring his inability to pay, end asking for indulgence, were sufficient to intemipt the statute, both as to the principal debtor and his surety. But see Cook V. Cook, 10 Heisk. (Tenn.) 664, where it was held that in order to- suspend the statute a request for delay must stipu- late for a particular time. In Leigh v. Linthicum, 30 Tex. 100, a letter in the following words was held not sufficient to remove the statute bar, because it did not show what part of the note was left unpaid, after deducting the credits : " You said something about a note you have. You are apprised I have an offset ; when 1 see you we will adjust the matter, and what- ever is due on the note I will pay." The words, " I feel ashamed of it standing so long," in a letter referring to a debt, held not sufficient. Wilcox v. Williams, 5 Nev. 206. A pledge of stock to secure a debt was held a continuous acknowledgment of the indebtedness that prevents the statute from running. Citizen's Bank v. Johnson, 21 La. An. 128. But this doctrine is ques- tionable. The true rule undoubtedly is, that while the statute runs upon the debt, the lien upon the stock for the amount of the debt still remains ; and after the debt is barred, the pledgee can look only to the stock for payment. 1 Hazlebaker o. Eeeves, 12 Penn. St. 264 ; Davis v. Steiner, 14 id. 275 ', Moore V. Hyman, 13 Ired. (N. C.) L. 272 ; Hart V. Boyd, 54 Miss. 547. But unless the promise or acknowledgment is for » sum certain, it must be for that which can be reduced to a certainty. McEae v. Leary, 1 Jones (N. C.) L. 91 ; Shaw v. Allen, Busb. (N. C.) L. 58 ; Peterson v. EUicott, 9 Md. 52; Thompson v. French, 10 Yerg. (Tenn.) 453 ; Hale v. Hale, 4 Humph. (Tenn.) 183 ; Hunter v. Kettredge, 41 Vt. 359. In Starkie on Evidence, voL ii. p. 666, 3d ed., the following is the rule deduded from the recent cases: "From the late decisions on the effect of an ac- knowledgment under the provisions o^thc statute 21 Jac. I. c. 19, where all the former cases were brought under consideration, the result seems to be that, to repel the limiting power of the statute, it must either amount to an express promise or to so clear an admission of a still subsisting liability, that a promise must necessarily be im- plied." InCoUedge v. Horn, 3 Bing. 119, the letter was this: "I have received yours respecting the plaintiff's demand ; it is not a just one ; I am ready to settle the account whenever the plaintiff thinks proper to meet on the business ; I am not in his debt £90, nor anything like that sum ; shall be happy to settle the differ- ence by his meeting me." There the party uses the terms, "shall be happy to settle the difference," which admits something due ; and that parol evidence may be given §6S.] ACKNOWLEDGMENTS. 195 the indebtedness.^ But it must be shown unmistakably to relate to the particular debt or demand which is sought to be revived by it, or the acknowledgment must be attended by circumstances which will enable a jury to ascertain definitely what debt was intended ; ^ and an to determine the amount cannot be dis- puted. So in Waller v. Lacy, 1 M. & G. 64, the defendant haviiag a claim against the plaintiff, the latter wrote at the foot of Ills bill, "By Mr. Lacy's bill," leaving a blank for the amount. He then wrote below, ' ' Agreeably to your request above I send you my bill, which I will thank you to peruse, and, if correct, favor me with a bill for the balance." The word "balance" necessarily implied that some- thing was due. The cases have not gone further than that an absolute admission of some debt being due is sufficient, and that that admission maybe coupledwith evidence to prove the amount. Leohmere v. Fletch- er, 1 C. & M. 623. In Cheslyn v. Dalby, 4 Y. & C. 238, a deed executed by A. and B. recited that A. was indebted in various sums, the amount of which was not yet ascertained, and that A. was willing to pay B. the amount which might appear to be due in respect of such sums, such sums to be ascertained and paid as therein mentioned, and the deed afterwai-d pro- vided for taking the accounts by the arbi- tration of two persons named therein ; and it was held that, notwithstanding the clause as to arbitration, the recital amounted to an absolute promise to pay the amount when ascertained, and that, when coupled with external parol proof as to the amount there was a sufficient acknowledgment to bar the statute. Alderson, B., said : " I apprehend it must be considered as fully established that a general promise in writ- ing to pay, not Specifying any amount, but which can be made certain as to the amount by extrinsic evidence, is sufficient to take the case out of the operation of the statute of limitations." Morrell ». Frith, 3 M. & W. 402. In Spong v. Wright, 9 M. & W. 629, the plaintiff brought an action of debt on a bill of exchange for ^£20. The defendant pleaded, first, except as to £10 lis., parcel, &o. a set-off for boftrd and lodging ; and as to the sum of £10 lis., payment of that sum into court. Repli- cation, that the alleged debts and causes of set-off did not accrue within six years before the commencement of the suit, con- cluding to the counti-y ; to which the defendant, by his rejoinder, added the similiter. At the trial, the plaintiff hav- ing proved his case, and the defendant his set-off, the latter put in a letter from the plaintiff to the defendant, in which the following passages were relied upon to take the case out of the statute : " Before closing this, I have to request you will be pleased to send me in any bill or what de- mand you have to make on me, and, if just, I shall not give you the trouble of going to law. If you refer to your books, you will find the last payment I made you was in May, 1839 ; the day I have forgot. I shall leave town tq-morrow, but shall be back in a few days, for a month, and if you will bring my bill in here to me by eleven, I shall be at your service ; " and this was held not a sufficient admission to take the case out of the statute of limita- tions. 1 Dickinson v. Hatfield, 1 M. & R. 141. " In order to reviye a note, which on its face is barred by the statute of limita- tions, by a new promise, such new promise must so plainly and clearly refer to or de- scribe the Very note in question as to iden- tify it with reasonable certainty. Gartrell V. Linn, 79 Ga. 702 ; Switzert). Noffsinger, 82 Va. 518 ; Martin v. Broach, 6 Ga. 21 ; Arey V. Stephenson, 11 Ired. (N. C.) L. 86 ; Bobbins v. Farley, 2 Strobh. (S. 0. ) 848 ; Conway v. Reyburn, 22 Ark. 290 ; Lockhart v. Eaves, Dudley (S. 0.) 821; Buckingham v. Smith, 23 Conn. 453 ; Clarke v. Dutcher, 9 Cow. (N. Y.) 674 ; Stafford v. Bryan, 3 Wend. (N. Y.) 582 ; McMnllen «i. Grannis, 10 N. Y. Leg. Obs. 67. It must refer distinctly and specifi- cally to the original debt. Dobson v. Quantrel, 1 Phila. (Penn.) 204 ; Clark v. MagUire, 35 Penn. St. 259; Tracy v. Kew- ell, 3 Leg. & Ins. Hep. 50 ; Cook v. Mar- tin, 29 Conn. 63 ; Lord v. Harvey, 3 id. 370. The necessity for a new promise, or of evidence from whicli a new promise may be implied, for the purpose of avoiding a plea 196 STATUTES OF LIMITATION. [CHAF. VII. acknowledgement of an indebtedness upon the aggregate of several dis- tinct classes of claims, but which neither refers to any particular of the statute of limitations, is as well settled in England as in this country ; and although an express or implied acknowl- edgment of the debt will suffice, Gardner V. M'Mahon, 3 Q. B, 561 ; Walter v. Lacy, 1 M. & G. 54 ; Dodson v. Mackey, 8 Ad. & El. 225, yet there can he no recovery if the acknowledgment is accompanied with any qualification tending to rehut the im- plication of a promise of payment, which ■would otherwise arise, Eoutledge v. Ram- say, id. 221 ; Spong v. "Wright, 9 M. & W. 629 ; Hart v. Prendergast, 14 id. 741 ; Cripps V. Davis, 12 id. 159 ; Morrell v. Frith, 3 id. 402. The operation and ex- tent of the rule in that country will best appear from the language of Lord Den- man, in deciding the case of Bateman 1). Finder, 3 Q. B. 574, where an attempt was made, on the authority of Yea v. Fou- raker, 2 Burr. 1099, to sustain a traverse of a plea of the statute by evidence of a payment by the defendant since action brought. "This case, when we consider it," said his Lordship, "is very clear. Yea V. Fouraker is acknowledged as an author- ity in Thornton v. Illingworth ; but the judges distinguish it from that case. Yea V. Fouraker was rightly decided, if, as Batlbt and Holroyd, JJ., lay it down in the subsequent case, the statute of limi- tations takes effect upon the ground that after a certain time it shall be presumed that the debt has been discharged. For, if that be so, an acknowledgment made at any time will rebut that presumption. But in Tanner v. Smart, 6 B. & C. 602, the earlier cases were revised, and the doctrine as to presumption of payment repudiated ; and it was held that, to prevent the oper- ation of the statute, a distinct promise was necessary. That promise must be before action brought." The courts of South Carolina, however, distinguish between those cases in which the debt is barred before the admission, and those in which it is not, and hold much slighter evidence sufficient in the latter case than in the for- mer. Young V. Monpoey, 2 Bailey, 278 ; Bowdre v. Hampton, 6 Eich. (S. C.) 208; Deloach v. Turner, 7 id. 143. This view of the law is unquestionably at variance with the general course of decision, and can hardly be sustained on principle. To continue the obligation of a debt requires an express or implied promise, and nothing more is requisite to revive it after it has been extinguished. A replication of a new promise, or of a new cause of action within six years, is a sufficient answer to a plea of the statute under all circumstances, and identity of allegation would seem to imply identity of proof. In Case v. Cushman, 1 Penn. St. 241, Kennedy, J., inclined to the opposite view. The acknowledgment must appear, or be shown to relate to the debt, which is the cause of action, StaflFord v. Bryan, 3 Wend. (N. Y.) 535; Martin v. Broach, 6 Ga. 21; Lockhart v. Eaves, Dudley (S. C), 321 ; Airey v. Stevenson, 11 Ired. (K C. ) 86 ; Brailsford v. James, 3 Strobh. (S. C.) 171 ; Boxley v. Gayle, 19 Ala. 151 ; but will be presumed to refer to that proved by the creditor, unless another is shown to exist by his evidence or that of the debtor, Bailey v. Crane, 21 Pick. (Mass. ) 323 ; Woodbridge v. Allen, 12 Met. (Mass.) 470; Coles V. KelsBy, 2 Tex. 541 ; Brown v. The State Bank, 5 Ark. 134 ; Wood v. Wylds, 6 id. 754 ; Guy v. Tams, 6 Gill (Md. ), 82; because, if there is no other debt, there is no need of proof ; and if there is, the burden rests with him who maintains the affirmative. Some of Jhe cases go further in language, if not in de- cision, and require specific proof of iden- tity in all cases, either from the words of the acknowledgment or from other sources, Robinson v. Fraley, 2 Strobh. (S. C.) 348 ; Prey v. Garcelon, 17 Me. 145; Martin v. Broach, ante ; and there can be little doubt that an unsettled account, containing differ- ent charges or items, will not be taken out of the statute by a general admission not naming the amount due on the whole, nor referring to any specific portion, Hoif v. Eichardson, 19 Penn. St. 388 ; Clark v. Dutcher, 9 Cow. (N. Y. ) 674 ; because the ambiguity appears under these circum- stances, on the face of the evidence : and such is unquestionably the law when part of the plaintiffs demand is barred by the statute, and part not, unless the acknowl- § 68.] ACKNOWLEDGMENTS. 197 claim, nor to one debt only, has been held not suflScient to take any edgment is so worded as to refer manifestly to the former as well as to the latter, Morgan v. "Walton, 4 Penn. St. 321. Au acknowledgment which is vague and am- biguous in itself is necessarily insufficient, Harbold v. Kuntz, 16 Penn. St. 210 ; Shuber v. Suter, 10 id. 308 ; Farley v. Kustenbader, 3 id. 418 ; and the result must be the same, where the ambiguity or uncertainty arises from the nature of that to which it refers ; but whatever may have been said, it has not yet been decided, that a single and liquidated debt will not be revived by a general acknowledgment or promise of payment. Certainty is es- sentially requisite in all cases to a good cause of action ; but an acknowledgment will be sufficient, if it can be reduced to certainty by applying it to that to which it relates. Smith v. Leeper, 10 Ired. (N. C.) 86 ; Moore v. Hyman, 13 id. 272. When the debt is certain and liquidated, nothing need be said in the acknowledg- ment about its amount, Thompson v. French, 10 Yerg. (Tenn. ) 453 ; Hazlebaker V. Reeves, 2 Jones (N. C. ), 264 ; Davis*. Steiner, 15 Penn. St. 275 ; Dinsmore o. Dinsmore, 8 Me. 433; Williams v. Griffith, 8 Exch. 335 ; unless there is something in the language of the acknowledgment Itself, or in the circumstances under which it is made, to show that the debtor meant to reserve the right to adjust or settle the sum to be paid himself, instead of leaving It to be determined in the manner pre- scribed by the law, which may, under the circumstances, and after the lapse of time, be inadequate to justice. Thus a promise or acknowledgment which speaks of the debt as unliquidated, Peebles v. Mason, 2 Dev. (K. C.) 337 ; Harbold v. Kuntz, 16 Penn. St. 210 ; or merely expresses an intention to pay whatever may prove to be due upon further examination, as when the debtor promises to have a settlement of the account, or to refer it to arbitrators, Sutton e. Burruss, 9 Leigh (Va.), 381; Bell V. Crawford, 8 Gratt. (Va.) 110; Moore V. Hyman, 13 Ired. (N. C.) 272; Morgan V. Walton, 4 Penn. St., will be interpreted in its more obvious sense, of a willingness to come to terms with the creditor, and not deprive himself of the protection of the statute. In like manner, great injustice might result if a general acknowledgment that something is due on an unliquidated account for goods sold or services rendered at different times, during a long-continued period, were held sufficient to remove the bar of the statute, and authorize a recovery for the whole of the demand. Suter v. Shuber, 23 Penn. St. 308. But the question is one purely of iutention, and depends wholly on the meaning of the debtor as deduced from his words and actions in connection with all the circumstances of the case. Thus, a promise to settle a debt may be given in such a way as to show that the debtor meant to bind himself to pay it ; and words which may have been wholly insufficient when applied to an un- settled account, may have a different sig- nification when spoken of a debt which, has been liquidated or reduced to certainty. Aylett 17. Robinson, 9 Leigh (Va. ), 45 ; Brookes v. Chesley, 4 Gill (Md.), 205 ; Smith V. Leeper, 10 Ired. (N. C. ) 86 ; Smellwood v. Smellwood, 1 D. & B. (N. C.) 335 ; Barnard v. Bartholomew, 21 Pick. (Mass.) 323. The admission must express or imply a willingness to assume an immediate obligation, even if it defers the time of performance, and not be limited to a mere expression of hope or anticipation. Spong II. Wright, 9 M. & W. 629 ; Hart V. Prendergast, 14 id. 741 ; Marseilles v. Kentoif's Executors, 17 Penn. St. 238. Thus a promise or attempt to make an arrangement for the payment of » debt which is not carried out or perfected will not rebut a plea of the statute, because it shows that the defendant, instead of being willing to meet the debt as it stands, con- templates paying it in some other form or manner not yet determined on. The Ken- sington Bank v. Patton, 14 Penn. St. 479 ; Oakes v. Mitchell, 15 Me. 360. The dicta in some of these cases, if not the cases themselves, would lead to the conclusion, that the most unequivocal promise to pay an unliquidated debt will not take it out of the statute, unless the amount actually due, or which the debtor is willing to pay, is fixed by the terms of the promise, or the subsequent language 198 STATUTES OF lilMITATIOX. [CHAP. VII. one of the claims out of the statute.^ Thus, in the Connecticut case or conduct of the parties, instead of being left to tlie determination, of a jury on such evidence as may have survived the lapse of time. But it may be said that any acknowledgment of the existence of an outstanding debt, wliere there are no cir- cumstances indicating a purjwse not to pay it, is sufficient to raise a new promise, and remove the statute bar although it may be limited in terms to the amount which may prove to be due upon examination or settlement of the accounts between the parties. Blake ». Parleman, 13 Vt. 574 ; "Williams l: Finney, 16 id. 297 ; Macklin V. Macklin, id. 193 ; Cooper v. Parker, 25 id. 502. Whether the debt will be revived by an ambiguous proiiiise or acknowledgment, depends upon what is really meant by the person who makes it, and this should ordi- narily be left to the jury, under proper in- structions from the court, Guy v. Tarns, 6 Gill (Md.), 82'; Bird v. Gammon, 3 Bing. N. C. 883 ; Dorr v. Swartwout, 1 Blatchf. (U. S. C. C.) 179 ; "Wainman v. Kyiiman, 1 Exch. 118 ; however clear or certain the evidence may be. White v. Jordan, 27 Me. .S70; and unless there is a plain want of evidence, when a verdict should be directed for the defendant, whether the evidence be in writing, Mar- seilles ». Kenton, 17 Penn. St. 239; Morrell V. Frith, 3 M. & W. 402; or merely verbal, Hancock v. Bliss, 7 Wend. (IT. Y.) 206 ; Sutton V. Burruss, 9 Leigh (Va.), 381 ; Bell t>. Crawford, ante ; Berghaus v. Cal- houn, 6 Watts (Penn.), 219; Farley w.Kus- tenbader, 3 Penn. St. 418; Waples v. Lay- ton, 3 Harr. (Del.) 508; Venti-is ». Shaw, 14 N. H. 422; Bell «. Morrison, 1 Pet. (U. S.) 351. On the other hand, it is unquestionably the duty of the' jury to find for the plaintiff, on clear proof of a subsequent part payment or other unequiv- ocal acknowledgment of the debt, and of the court to grant a new trial if they do not, Jones v. Jones, 21 N. H. 219; Rucker V. Frazier, 4 Strobh. (S. C.) 93; although the point is one on which juries usually require restraint rather than prompting. In Landes v. Roth, 109 Penn. St. 621, it was held that a general admission that the debtor owes for a certain kind of property, or for services, &c., is sufficient although the amount of the indebtedness is not stated. Schmidt v. Ffan, 114 111. 494 ; Johnson v. Johnson, 80 Ga. 260 ; Gartnell t>. Linn, 79 Ga. 700; Shipley ». Shilling, 66 Md. 558 > Fletcher i7. Gillan, 62 Miss. 8; Hassey »..Kiikman, 95 N. C. 63 ; Chapman's App. 122 Penn. St. 331 ; Montgomery v. Cunningham, 104 Penn. St. 349 ; Lawson v. McCartney, 104 id. 349 ; Ci-omad v. Stull, 119 id. 91. The acknowledgment must be made to the creditor or his agent and there is no' theory upon which the doctrine of ac- knowledgments is predicated which will sustain the doctrine of those cases which hold that an acknowletlgment to a stran- ger is sufficient. Biddel i>. Brizzolada, 64 Cal. 354; Duguid s. Sholiield, 32 Gratt. (Va.) 803; Maxwell v. Eeilly, 11 Lea (Teuii.), 307; Henry v. Root, 33 N. Y. 526 ; In re Kendrick, 107 N. Y. 104 ; Libby v. Robinson, 79 Me. 168 ; Hargis v. Sewell, 87 Ky, 63 ; Kuner u. Crull, 19 111. 89 ; Nibkck v. Goodman, 67 Ind. 174 ; Comei v. Allen, 72 Ga. 1 ; Fort Scott V. Hickman, 112 U. S. 150 ; Pearson v. DaiTJngton, 32 Ala. 227. Un- less the acknowledgment is made to a stranger under such circumstances that the debtor can be said to have constituted such stranger his agent to communicate the acknowledgment to the creditor, in which case the acknowledgment is trejited as having been made by the debtor himself Wintertown v.Winterton, 7 Hun (N. Y. ), 230 ; De Freest v. Warner, 98 N. Y. 217 ; Badhman v. Roller, 9 Baxt. (Tenn.) 409 ; and it is also an indispensable requisite that such acknowledgment should have been communicated to the creditor within a reasonable time after it was made to such third person. Abercrombie v. Butts, 72 Ga. 74 ; Allen ». Collins, 73 Mo. 178 ; Allen ». Collier, 70 id. 138. 1 Buckingham v. Smith, 23 Conn. 453, where several claims against a person are barred, a general acknowledgment of in- debtedness will not take any of them out of the statute. Smith v. Moulton, 12 Minn. 352; Walker v. Griggs, 32 Ga. 119; Box- ley V. Gayle, 19 Ala. 151. § 68.]f ACKNOWLEDGMENTS. 199 last referred to, the defendant's intestate was indebted to the plaintiff upon several notes and also upon account ; and in an action against the estate it was shown that the deceased had admitted that he owed the plaintiff upon " notes, receipts, and accounts," and that he was " deter- mined to have a settlement of all their concerns," and admitted that he should owe him, after all. The plaintiff testified that the deceased, about four years before his death, said that " all he owed him would be settled up and made all right." This action was predicated upon one promissory note only, and the court held that it was insufficient to take the note in suit out of ttie statute.^ It would be exceedingly unjust to hold that a person, by such an acknowledgment, admitted the validity, and impliedly promised to pay each of the several claims which a person held against him, so as to enable the person to maintain separate suits thereon, and relieve them from the operation of such general acknowl- edgment. The acknowledgment carries with it evidence that the debtor claimed to have an offset to the claims collectively-, and in no sense can it be extended beyond a general balance resulting from a settlement of all the claims upon both sides ; and a contrary doctrine would defeat the offset. Stokes, J., in the Connecticut .case ^ before referred to, very clearly set forth the eflfect of such an acknowledgment. " The burden of prov- ing the requisite acknowledgment rested upon the plaintiff in this case, and the real question on the trial was, whether such an acknowledgment was shown by the declarations claimed to have been made by the de- fendant's intestate. Those declarations purported to refer to no par- ticular claim or debt, but amounted only to an acknowledgment that a balance would be due upon a settlement or adjustment of several claims which the plaintiff held against him, and it was also shown by the plain- tiff himself, that when those declarations were made he held several claims or evidences of debt against the intestate. If those declarations had purported to refer to the claim in question in this suit, or to refer to one claim only, and there had been evidence to show that there could have been no others to which they could have referred, they would clearly have constituted sufficient evidence of a new promise to pay the debt in question. But as they were acknowledgments only of a balance due on the aggregate of several claims, we are of opinion that they did 1 In Buckingham v. Smith, ante, the was over-favoraUe to the plaintiff. "We court submitted the question to the jury, think that under such circumstances the whether the acknowledgment related to question should not be submitted to the the note in question; and upon hearing in jury at all, and that the acknowledgment the appellate court, it was held that this can only be held to apply to the balance was all the plaintiff could ask. " We are of all the claims upon settlement, and that strongly inclined to the opinion," said the case did not come within the rule Storks, J., "that the jndge below should adopted in Lloyd v. Maund, 2 T. R. 761; have excluded these declarations as inad- Frost v. Bengough, 1 Bing. 266; or Beala missible for the purposes for which they v. Nind, 4 B. & Aid. 571." were offered, and that the course he took * Buckingham v. Smith, ante. 200 STATUTES OF LIMITATION. [CHAP. VII. not prove that there was anj-thing due on any of them in particular, and therefore that they were not sufficient acknowledgments of the note declared on. If," continued he, ," the declarations of the intestate claimed to be proved in this case amounted to an acknowledgment that the note in question was due, they would also amount to a similar aL-knowledgment as to each of the claims held against him, and would enable the latter to recover all of them. This would obviously be a perversion of the import of those declarations." ^ Instances maj' arise where a general acknowledgmenW*f indebtedness upon several demands will be sufficient ; but where the acknowledgment relates to a balance upon a settlement, the demands must be such as can be and are em- braced in one action, so that the balance can be ascertained and re- covered under one head. Thus, in a Connecticut case,*" the pkintiflE held two independent claims against the defendant ; one a note, and the other an account, a statement of which was written down on one piece of paper and presented to the defendant soon after they became due, and were admitted by him, as so presented. Five jears afterward the defendant made a general acknowledgment of indebtedness, and prom- ised to pay him what he owed him. In an action of assumpsit upon the note and account the defendant pleaded the statute in bar, and the court held that the evidence of the acknowledgment should not be re- jected, because it was too general and indefinite, but that the question of its application was for the jurj-.' In that case no difficulty could 1 See Clark v. Maguire, 35 Penn. St. biguoiis letter, neither ' expressly admit- 259; Cook v. Martin, 29 Conn. 63; Con- ting or denying the debt, amounted to an way V. Eeyburn, 22 Ark. 290 ; Arey i>. acknowledgment, as one of fact for the Stephenson, 11 Ired. (N. C.) L. 86; Clarke jury. That was an action of assumpsit for V. Dutcher, 9 Cow. {N. Y.) 674 ; Martin work and labor by the plaintiff as an at- V. Broach, 6 Ga. 21; Sands v. Gileston, 15 tomey, to which the defendant pleaded Johns. (N. Y.) 511; Sherrod v. Bennett, the general issue and the statute of limita- 8 Ired. (N. C.) L. 309; Braitsford v. tions. At the trial, before Lord Kenyon, James, 3 Strobh. (S. C.) 171. the plaintiff produced the following letter, " Cook V. Martin, 29 Conn. 60. written to his attorney by the defendant » " If," says Parker, C. J., in Whit- in Januaiy, 1788, in order to take this case ney v. Bigelow, 4 Pick. (Mass.) 412, out of the statute of limitations : "I have " there be words of acknowledgment or lately been served by Mr. Meredith Price promise, without declared reference to the with a writ at the suit of one Lloyd. I debt in question, it is for the jury to deter- am at a loss to know whether was it your mine, from the circumstances in evidence, orders, or was it some other of the same whether reference was had to the debt name. For several reasons, I cannot sup- which is sought to be recovered." In pose that an old particular friend would Martin v. Broach, 6 Ga. 21, it was held ever be guilty of causing an action to be that where there is no dispute as to the commenced, without first advising him on facts which go to prove the acknowledg- it. I believe that you have had no cause ment or new promise, the question is one to contradict my saying that I always of law for the court; but where there is served you on all occasions that ever lay any dispute, the question is a mixed one of in my power ; therefore I flatter myself law and fact for the jury. In Lloyd v. that you have no concern in this business. Maund, 2 T. R. 761, the court seemed to However, if it should appear to the con- regard the question as to whether an am- trary, I must beg leave to inform you that §68.] ACKNOWLEDGMENTS. 201 arise as to the application of the acknowledgment or the intention of the parties, as the defendant's attention was directed to both claims, before I will pay any cost more than de- fending, I will absolutely take house in the liberty of Carmarthen, which I am fully satisfied will answer my expectations in business much better than here at Land- overy. As to Mr. P.'s views, I am no stranger at all to, and see through them . without a spectacle ; and as to your part, cannot expect to reap any benefit from that quarter, as he says you are in- debted to him to the amount of £700. Therefore, if you seriously consider your own interest, you cannot be any gainer by endeavoring to injure a man who has al- ways been your friend. However, you are to act as you think proper. As in respect to matters between you and me, they will be rectified, when I can settle my affairs, which I believe will now soon be. Mr. Rice Davies of Swansea has received positive orders from Mr. E. Price and son to sell the Erwastod and Combdu estates, and they will be advertised soon. I cannot believe that they will be sufficient to dis- charge the mortgage and Mr. Davies's de- mand, which amounts in cash lent and business done to £1000." But Lord Kenton, being of opinion that this did not amount to a premise or acknowledgment of the debt, so as to take it out of the stat- ute of limitations, nonsuited the plaintiff. A rule was obtained to show cause why the non-suit should not be set aside and a new trial granted. Ashhubst, J., said : " The only doubt in my mind is, whether the letter should not have been left to the jury, for them to form their opinion upon it. For it is certainly true that any ac- knowledgment will take the case out of the statute of limitations. Now, though this letter is written in ambiguous terms, there are some parts of it from which the jury might perhaps have inferred an ac- knowledgment of the debt. Throughout the whole of it the defendant does not deny the existence of the debt. He begins with reproaching the plaintiff for not giv- ing him some information of his intention to bring an action again.st him; and then he says, in substance, ' that sooner than pay the costs he will go to jail.' And in another part he adds: 'As to the affair between you and me, it will be rectified soon.' That, perhaps, does contain an in- sinuation that something was due. And I think the jury should have put their construction on it." BuLLER and Grose, JJ., concurred. , As to whether the acknowledgment re- lates to the debt in suit is a question for the jury. Beal v. Nind, 4 B. & Aid. 571. In Frost v. Benough, 1 Biug. 266, where, in an action on a promissory note, the defendant pleaded the statute, and the plaintiff gave in evidence, as proof of ac- knowledgment within six years, a letter from the defendant to him, stating that " business called him to L., but should he be fortunate in his adventures, the plain- tiff might depend on seeing him at E., otherwise that he must arrange matters with the plaintiff as circumstances would permit;" and the defendant did not show that there were any other matters besides the promissory note to which this letter could refer. It was held that it was prop- erly left to the jury to decide whether such letter referred to the matter of the note, and was a sufficient acknowledgment to take the case out of the statute; and the jury having found in the affirmative, held that the verdict was conclusive. In Lee V. Wyse, 35 Conn. 384, this rule was well illustrated. In that case the defendants were members of a firm, and as such the defendant Wyse held the legal title to a farm as trustee of the firm. The plaintiff entered into a parol contract with A. for its purchase and paid part of the purchase- money to him. Subsequently the firm repudiated this contract and sold the farm to another party. Part of the plaintiff's demand was barred by the statute. A con- versation between the plaintiff and one S. , at which A. was present, and to which he assented, was held. S. said to the plain- tiff, " When will you come up and settle ? " to which the plaintiff replied, " In a day or two." S. rejoined, " That is right; and if W. owes you anything he will pay you." The court held that the question whether the acknowledgment was intended to apply to the whole account, or only to the part not barred by the statute, was for the jury. 202 STATUTES OP LIMITATION. [OHAP. VII. and his acknowledgment related to an indebtedness growing out of botb. " Indeed," sa^-s Sanfo&d, J., " the very terms of the inquiry' and the answer include both of these demands. However numerous the items of indebtedness from one individual to another, they aU together consti- tute what the former owes to the latter ; and a promise of the latter lo pa\' the former what he owes him, prima facie, if not conclusiveh', in- cludes them aU. The question is not whether the evidence offered was sufficient to prove that the defendant's acknowledgment and promise had reference to both of these items of demand or either of them, or not, but whether it would have conduced to prove such reference." ^ Therefore it may be said that, where there is an acknowledgment of an indebtedness, and there are several distinct debts, whether the amount thereof is certain or not, the question as to whether the acknowledg- ment related to all or to one or more of them, and to which, is for the jury ; '■' and if the acknowledgment is sufficiently definite to enable them to refer it to the specific indebtedness intended, their finding will be sustained.' But in these cases, as well as in the others before cited to this point, it will be observed that there could be no doubt as to the indebtedness intended. In one case * it was shown that the only claim the plaintiff had against the defendant was the note in suit. In the Connecticut case ° the only indebtedness was for a balance upon the note and account in suit, a statement of which upon one piece of paper was presented to the defendant, and was before him when the acknowl- edgment was made, and his acknowledgment related to that. In an Iowa case ^ the defendant wrote a letter to his creditor, referring to Boyd V. Hurlburt, 41 Mo. 224. In Shaw ^ Whitney «. Bigelow, ante. t>, Newell, 2 B. I. 264, the defendant being ^ Whitney ». Bigelow, ante; Cook v. indebted on four notes, one of which was Martin, arde; Frost w. Benough, ante. barred by the statute, the promisee, exhib- ' Cook v. Martin, avie ; Frost v. Ben- iting four slips of paper, said to him, "I ough, ante ; Whitney v. Bigelow, ante. It have got the interest reckoned on these is not necessaiy that the amount or nature notes, and written new ones, and want you of the debt should be stated. If the par- te sign them." The defendant replied, " I ticular indebtedness is sufficiently identi- will pay you all I owe you within a year; " fied, these circumstances may be supplied and afterwards, being sued upon these by extrinsic evidence. Lechmere v. Fletch- notes, said: "She need not have sued me. er, I C. & M. 623. In Lord v. Harvey, 3 The last time I saw her I promised to pay Conn. 370, the court adopted this view, her every cent I owed her within a year." In Lawrence v. Worrell, Peake's Cas. 93, It was held that the evidence was prop- Lord Kenton held that an acknowledg- erly submitted to the jury for them to say ment that some money is due is suiBcient whether this promise included the note to take the ca.se out of the statute as to all barred by the statute. But quaere, could that is due. See also Peters v. Brown, 4 the promise be said to be sufficient to em- Esp. 46 ; Lloyd v. Maund, 2 T. R. 760 ; brace that note ? If the statute had run Catling v. Skoulding, 6 id. 193. thereon, could the defendant be said to ♦ Frost v. Benough, ante. See also in owe it ? The court held that it was a Whitney v. Bigelow, ante. question of fact for the jury to say whether ' Cook ». Martin, ante. the defendant intended to include this ° Stout v. Marshall, 75 Iowa, 498. note with the others, and in that view the ruling may be sustained. § 68.] ACKNOWLEDGMENTS. 203 certain " old notes," saying, " I have no nione3' now, but you shall have every cent that is due on them," was held insufficient to remove the bar of the statute, as it did not specify the particular notes re- ferred to in the letter. It may be stated as a general rule that, where there is an acknowledgment of indebtedness, it will be taken to relate to the demand in suit, and the burden is upon the defendant to show that it related to another debti or to a balance upon the debt in suit and another debt.* But if, upon its face or upon the proof, it is clearly established that the acknowledgment did not relate to the debt in suit, the court should direct a nonsuit, where a nonsuit can be directed by the court, or should direct a verdict for the defendant, where a nonsuit cannot be directed without the leave of the parties. Thus, in an Eng- lish case * in assumpsit on a bill of exchange, to which the statute of limitations was pleaded, two letters were given in, evidence to take the case out of the statute. They were written by the defendant to a third person ; the first of them stated that he should be much obliged to the plaintiff to withdraw his outlawrj', and added that, as soon as his situa- tion would allow, the plaintiff's claim, with others, should receive that attention which, as an honorable man, he considered them to deserve. The second letter expressed his readiness to do anything to satisfy the plaintiff and all his creditors. No evidence was given of any proceed- ing to outlawry having been taken with respect to the debt the plaintiff sought to recover. It was held that, under these circumstances, the letters were not suffleientlj' connected with that debt to entitle the plaintiff to a verdict, and he was nonsuited ; but leave was given for a motion to set aside the nonsuit. On application afterwards to the Court of Common Pleas the nonsuit was confirmed, a rule nisi for setting it aside being refused. It was insisted that, up6n the authority of an earlier case,* as the letters did not refer to any particular debt, it would apply to what- ever claim the plaintiff set up. " In that case," said Tindal, C. J., "the acknowledgment was of a general nature, not applying to any particular claim. Here my difficulty is, that in the first letter a claim is spoken of, as to which Mr. Fearn had proceeded to outlawry. It is you who are to take the case out of the statute, and I think you should show the fact of the outlawry. If I could look at this record and see that there was any appearance of a proceeding to outlawry, I should know how to deal with it ; but I cannot see that this can apply. I think you must show a little more specifically and pointedly that this acknowl- edgment applies to the particular debt. The new statute says, that ' no acknowledgment or promise by word only shall be deemed suffi- cient evidence of a new or continuing contract,' &o., ' unless such acknowledgment or promise shall be made or contained by or in some 1 Whitney v. Bigelow, ante; Cook v. ' Frost w. Benough, ««<«; Bird i). Gam- Martin, ante. mon, 3 Bing. N^. C. 883. « Femn i>. Lewis, 4 C. & P. 169. 204 STATUTES OP LIMITATIOK. [CHAP. Vn. writing to be signed by the party chargeable thereby.' It becomes, therefore, the duty of the party who is to take a case out of the statute to show affirmatively that the acknowledgment applies distinctly to the debt. I do not think I ought to call upon the defendant in this case to show negatively that there is anj' other debt to wliicli it can apph'. This, after the best consideration I can give to the subject, is the con- clusion at which I think I ought to arrive, and, therefore, I shall direct the plaintiff to be nonsuited." Where an acknowledgment stands alone, in nowise dependent upon extrinsic circumstances, its effect and construction is for the court ; but if it is explained, or in anywise controlled by extrinsic facts, the ques- tion is for the jurj'. Thus, in an English case,^ the defendant sent the plaintiff a letter, as follows: " Sir, — Since the receipt of your letter (and indeed for some time previously), I have, been in almost daily expectation of being enabled to give a satisfactory reply to your appli- cation respecting the demand of Messrs. Morrell against me. I pro- pose being in Oxford to-morrow morning, when I will call upon you on the matter." It was contended by the plaintiff that this letter was a sufficient acknowledgment in writing to take the case out of the stat- ute, and he requested the court to leave the question to the jury ; but the court, Gurnet, B., refused to do so, and held as a matter of law that the letter was not a sufficient acknowledgment, and upon hearing in Exchequer this ruling was sustained. " I think," said Lokd Abinger, C. B., " there is no ground for a rule. This letter contains nothing that can be construed into an acknowledgment of the debt. The most that can be made of it is that it is evasivel}' worded, so as to avoid an}' direct acknowledgment. The next question is, whether it ought to have been left to the jury. One case in which the effect of a written document must be left to a jury is, where it requires parol evi- dence to explain it, as in the ordinary case of mercantile contracts, in which peculiar terms and abbreviations are employed. So also, where a series of letters form part of the evidence in the cause, they must be left, with the rest of it, to the jury. But where the question arises on the construction of one document only, without reference to any ex- trinsic evidence to explain it, it is the safest course to adhere to the rule, that the construction of written documents is a question of law for the court. The intention of the parties is a question for the jury, and in some cases — in cases of libel, for instance — the meaning of the document is part of that intention, and, therefore, must be submitted to the jury. But where a legal right is to be determined from the con- struction of a written document which either is unambiguous, or of which the ambiguity arises, only from the words themselves, that is a question to be decided by the judge. The decision in Lloyd v. Maund amounted to no more than this, that the judge was wrong in the inter- 1 Morrell «. Frith, 3 M. & W. 402 ; Clark v. Sigourney, 17 Couu. 511 ; Curzon V. Edmonds, 6 M. & W. 295. § 68.] ACKNOWLEDGMENTS. 205. pretation he put upon the letter given in evidence, and therefore he should have left it to the jury. But the construction of written instruments is in the first place for the judge." Parke, B., said: "I am of the same opinion. I thiak this letter contains no acknowledgment of a debt simpliciter, and no promise to pay. According to the recent cases, the document, in order to take the case out of the statute, must either contain a promise to pay the debt on request, or an acknowledgrtient from which such promise is to be inferred. Now, the utmost that can be made of this letter is, that it acknowledges the existence of the debt mentioned in the previous letters ; but that the defendant does not mean to express any promise to pay, but reserves it for future consideration. There is certainly no denial of the debt, but it amounts to this onlj-, — ' though I do not deny it, 1 do not promise to pay it ; whether I will promise, and what species of pa3-ment I will make, 1 reserve for further consideration.' There is no acknowledgment simpliciter, but only coupled with this declaration of his intentions. But my brother Ludlow says the letter ought to have been left to the jury, on the authoritj' of Lloyd v. Maund. I have alwaj's acted on that authority in the case of an obscure and doubtful document, but I have always disapproved it. The course I have taken is, to express my own opinion, and then to take that of the jurj-, in order that, if they differed with me, the opinion of the court might be fairly taken on the question whether the document should be left to the jurj'. But if I am called on to give an opinion, I think the case of Lloyd V. Maund is not law. The construction of a doubtful instrument itself is not for the jury, although the facts by which it may be ex- plained are. It is not, however, necessary to decide that point, because my brother Ludlow does not ask for a new trial, unless we think this letter such as that a jmy might fairly have inferred from it an acknowl- edgment of the debt." ' If there is an express promise to pay, all implied promises are ex- cluded ; and the party relying thereon must stand upon that exclusively, and cannot seek the aid of any implied promise to wrest his claim from the operation of the statute.^ In the case first cited in the last note, it appeared that Isaac Mills in his lifetime executed to one Wildman a promissory note, as follows : — ^ '' New Havhn, June 26, 1819. On demand, for value received, I promise to pay to Zalman Wildman, or order, nine hundred and thirty-seven dollars, fifty cents, with interest till paid. Witness my hand, Isaac Mills. 1 In Hancock v. Bliss, 7 Wend. (N. Y.) it," the evidence ought not to be left to 267, it was held that, where the expres- the jury. See also Magee v. Magee, 10 sions are vague and indeterminate, leading Watts (Penn. ), 172 ; Berghaus w. Calhoun, to no definite conclusion, and at most only 6 id. 219; Clarke v. Dutcher, 9 Cow. to probable inferences, which may affect (N. Y.) 674; Oliver v. Gray, 1 H. & G. different minds in different ways, as where (Md. ) 204. the defendant said " that it was not in his ' Mills v. Wildman, 18 Conn. 124; Tan- power to pay at that time, hnt he hoped to ner w. Smart, 6 B. & C. 603. see the plaintiff and do something abont 206 STATUTES OF LIMITATION, [CHAP. VH. This instrument had an indorsement thereon as follows: "New Haven, May 14, 1824. Be it forever known and remembered that I owe the above note, and will paj' it, and will never avail raj'self of any statute of limitations. Isaac Mills." And a later indorsement, as fol- lows : "New York, Oct. 13, 1840. On a settlement of all accounts between me and the estate of Z. Wildman, Esq., whatsoever balance shall be due on this [note] shall be paid. Isaac Mills." Isaac Mills died in the early part of February, 1843, and the representatives of "Wildman's estate presented the note to the commissioners of Mill's estate, and it was allowed at $2,290.86. From this allowance the exec- utors of Mills appealed, and the court, without passing upon the effect of the first indorsement, but evident!}- regarding it as insufficient, held that the last indorsement was suflBcient to remove the statute bar ; and that as the commissioners had passed upon the matter, and being the proper tribunal to ascertain the balance due, according to the terms of the last indorsement, their finding was conclusive. The appellant in- sisted that the promise contained in the last indorsement being express, the appellees could not avail themselves of any implied promise, and that the promise being conditional could have no force unless the con- dition was shown to have been complied with ; and the court conceded both of these grounds, but held that a fair construction of the indorse- ment did not bind the appellees to a personal settlement with Mills in his lifetime, but to a legal settlement before any tribunal having authority to ascertain the balance due. Sec. 69. Express or Implied Refusal to pay. — If an admission of a debt is accompanied with a distinct refusal to pay, the implication of a promise arising from the acknowledgment is of course rebutted.^ Thus, even under the old theory (and a fortiori the case would be so still more now) an admission as follows, " I cannot aflFord to pay my new debts, mucli less my old ones," was held insuflicient.'' So, too, if an acknowledgment is accompanied with an objection to payment, which would, if valid, have been at any time a good defence to an action, no presumption of a promise of payment will be raised. Thus, an admis- sion of a debt made to a person, who at the same time signed a paper importing to release it, was held not sufficient to avoid the statute, although the discharge was inoperative, and was indeed conditional upon an act of the defendant which he failed to perform.' So, too, where the defendant said, " I acknowledge the receipt of the money, but the testatrix gave it to me," it was held that the last expression nullified the acknowledgment of the existence of the debt* So where 1 Lee V. Wilmot, L. R. 1 Ex. 364 ; admission that the sum claimed has not Brigstocke v. Smith, 1 C. & M. 483. heen paid is not sufficient, without some Knott V. Farren, 4 D. & R. 179. further admission, or other proof that the ' Goate V. Goate, 1 H. & N. 29. debt once existed. There must be evidence « Owen V. -Wooley, Biiller'a N. P. 168 ; of a promise, express or implied, to pay the De La Torre v. Barclay, 1 Starkie, 7. An debt, AUcook v. Ewan, 2 Hill (S. C), 326; §69.] ACKNOWLEDGMENTS. 207 the debtor said : " I know that I owe the money, but I will never pay it ; " 1 or, " I owe the debt, but I will not pay it unless- 1 am compelled to by law ; " ' or, "I owe the debt, but am too poor and cannot pay Laurence v. Hopkins, 13 Johns. {S. Y.) 288 ; Sands v. Gelston, 15 id. 511 ; Moore V. Bank of Columbia, 6 Pet. (U. S.) 86 ; Mosher v. Hubbard, 13 Johns. 510; Guier V. Pierce, 2 Browne (Penn.), 35 ; Young v. Monpoey, 2 Bailey (S. C), 278 ; Cohen v. Aubiii, id. 283 ; Lowry w. Dubose, id. 425; Trammell v. Salmon, id. 308 ; and an ad- mission that the debt continues due at the time of the acknowledgment. Bangs v. Hall, 2 Pick. (Mass.) 368; French v. Frazier, 7 J. J. Mar. (Ky.) 425 ; 'Wetzell V. Bussard, 11 Wheat. (U. S,) 310 ; Oliver V. Gray, 1 H. & G. (Md.) 204 ; Ferguson V. Tayloi-, 1 Hayw. 20 ; Belles v. Belles, 7 Halst. 339; Purdy v. Austin, 3 Wend. 187; Russell V. Gass, M. & Y. (Tenn. ) 270 ; Barlow v. Bellamy, 7 Vt. 64 ; Mellick v. De Seelhorat, 1 ill. 171. There must be such an acknowledgment as will satisfy a reasonable man that the defendant, at the time of making it, considered the debt then existing. Harwell v. M'Cullook, 2 Overt. (Teun.) 275. The promise must be abso- lute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise, Kimmel v. Schwartz, 1 111. 216; Small wood V. Smallwood, 2 D. & B. (N. C.) 330 ; Mas- tin I). Waugh, id. 517; Oliver ». Gray, 1 H. & G. (Md.) 204 ; Eokert v. "Wilson, 12 S. & E. (Penn.) 393 ; and must clearly re- fer to the very debt in dispute between the parties, Clarke v. Dutcheri 9 Cow, (N. Y.) 674. A general acknowledgment of in- debtedness to the plaintiff is sufficient, prima facie, to take » demand out of the statute ; the onus lies on the defendant to prove that he referred to a different de- mand. Whitney v. Bigelow, 4 Pick, (Mass.) 110, It must be distinct, and without' a question of its being due, or an intimation that it would not be paid, Berghaus v. Calhoun, 6 Watts (Penn.), 219 ; Gleim v. Ries, id. 44. There must be an express promise to pay, or an acknowledgment of a present indebtedness and willingness to pay, Allen v, Webster, 15 Wend. (N, Y. ) 284 ; Stafford v. Richardson, id, 302 ; Gay- lord V. Van Loan, id, 309, The new prom- ise mast be clear and express. Hanison v. Handley, 1 Bibb (Ky.), 443 ; Ash v. Pat- ton, 3 S. & E. (Penn.) 300 ; Head v. Man- ners, 5 J. J. Mar. (Ky.) 265 ; Bell v. Morrison, 1 Pet. (U. S.) 351, The mere claiming of a balance is not sufficient. Eokert v. Wilson, 12 S. & E. (Penn, ) 393. A conditional promise is sufficient, but the plaintiff must show either a performance of the condition or a readiness to perform. Oliver v. Gray, 1 H. & G. (Md.) 204; Read V. Wilkinson, 2 Wash. (U. S. C. C.) 514; Bell V. Morrison, 1 Pet. (U. S.) 3,^1. If the defendant promises to pay a debt barred by the statute, in certain specifio articles, the promise is conditional, and the plaintiff is bound to show a willing- ness to accept such articles. Bush v. Bar- nard, 8 Johns. (N. Y.) 407. Where the maker of a note denied his signature, de- claring the note to be a forgery, but said that, if it could be proved that he signed the note, he would pay it, and it was proved at the trial that he did sign it, this was held sufficient to take the case out of the statute of limitations. Seaward v. Lord, 1 Me, 163, 1 A'Court V, Smart, 3 Bing. 392. Any suggestion accompanying an acknowledg- ment which qualifies it, or repels the idea of a promise to pay, destroys its effect. Cocks V. Weeks, 7 Hill (N. Y.), 45. In Danforth v. Culver, 11 Johns. (N. Y.) 1 46, the defendant admitted the indebted- ness, but declared his intention to rely upon the statute; and it was held that the acknowledgment did not remove the statutory bar. 2 Jenkins v. Boyle, 2 Cranch (U, S, C, C), 120. In Warren v. Perry, 5 Bush' (Ky,), 447, the question as to whether an intimation by a debtor that he would pay in cattle or horses, and his silence under the threat of a suit unless he wonld pay in United States currency, implied that he would not pay money in any form, and if sued would plead the statute of limita- tions, was held to he one for the jury, la Cowley V. Fnrnell, 15 Jur. 908, the defend- ant wrote to the plaintiff as follows: "I am much surprised at receiving a letter fi'om H. B, [nu attorney] for the recov- 208 STATUTES OP LIMITATIOlf. [chap. VII. it ; " ^ or, " I owe the debt, but ara under no obligation to paj- it ; " ^ and, generall3-, if there is anything attending what was said, which repels the inference of a promise to pay the debt, it does not save it from the operation of the statute.' In Missouri, where the statutory provision relative to acknowledg- ments and promises to take the debt out of the statute is that " no acknowledgment, or promise hereafter made, shall be evidence of a new or continuing contract whereby to take any case out of the operations of the provisions of this article or deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing subscribed by the party chargeable hereby." It is held that it is not necessary in order to take a claim out of the statute that the debtor should acknowledge a willingness to pay the debt, but that a simple acknowledgment that he owes it, and that it remains unpaid, is sufficient if the acknowledgment is not coupled with conditions or circumstances which repel or rebut an intention to pay it.^ In the case last cited, where the debtor by letter when speaking of the note in suit says of it, "The debt I owe you," it is an unequivocal ad- mission and acknowledgment of an actual subsisting debt, and when he eiy of your debt. I must candidly tell you, once for all, I never shall be able to pay you in cash, but you may have any of the goods we have at the Pantechnicon, by paying the expenses incurred thereon, without which they cannot be taken out, as before agreed, when F. was in town ; " and it was held not sufficient to remove the statute bar. 1 Thayer v. Mills, 14 Me. 300. '^ Lawrence v. Hopkins, 13 Johns. (N. Y. ) 238 ; Gaylord v. Van Loan, 15 Wend. (N. Y.) 238. In "Woodfin v. An- derson, 2 Tenn. Ch. 331, a writing as fol- lows was held not sufficient to prevent the running of the statute : " I request that no suit shall be brought on this note, and agree that the statute shall not rnn against it. I will pay it soon." ^ Roosevelt v. Marks, 6 Johns. (N. Y. ) 290 ; Clementson v. Williams, 8 Cranch (U. S.), 72; Bellu. Rowland, Hard. (Ky.) 301; "Wetzellw. Bussard, 11 Wheat. (U. S.) 314 ; Thompson v. Peter, 12 id. 567 ; Ormsby v. Letcher, 3 Bibb (Ky.), 271 ; Harrison v. Hardy, 1 id. 443; Bell v. Mor- rison, 1 Pet. (TJ. S. ) 351. A clear, distinct, and unqualified acknowledgment of a debt as an existing obligation, identifying it so that there can be no mistake as to what it refers to, is sufficient, Johns v. Lantz, 63 Penn. St. 324 ; but it must be such that' the debtor can be said to have recognized a ■present subsisting liability, and manifested a willingness to assume or renew the obli- gation, Simonton v. Clark, 65 N. C. 525 ; Chambers v. Ruby, 47 Mo. 99; Ringo v. Brooks, 26 Ark. 540. See BnfBngton v. Davis, 33 Md. 511, where a statement by a debtor that she regretted her inability to remit the amount of a note, and refeEjing the holder to her agent who would do all that the ruined condition of her affairs would permit, was held sufficient. Where a debtor, upon being called upon to pay a debt, said, "If you will call in two weeks I will pay you something, I cannot tell how much," it was held to amount to an unqualified admission of his liability to pay the whole debt, and such an acknowleilg- ment as removed the statute bar. Blake- man V. Fonda, 41 Conn. 681. So where a father for whom his daughter had worked admitted before his decease and witliin six years of the time the action was brought that he had made an express agreement to pay her a certain amount, it was held suffi- cient to keep the claim on foot. Watson v. Stein, 76 Penn. St. 121. * Chidsey v. Powell, 91 Mo. 622. § 69.] 'ACKNOWLEDGMENTS. 209 then expresses his inability to pay any part of the debt at that time, giving his reasons therefor, it was held that there was nothing in these expressions indicating a purpose not to paj- or that is inconsistent with the implied promise to pay arising from the acknowledgment. Black, J., in delivering the opinion of the court said: "There is no question but the letter of Addis read in evidence related to the note in suit, so that the real question is : Does that letter contain such an acknowledg- ment as will avoid the plea of the statute of limitations? In view of the many conflicting decisions upon this subject, it is well to keep in view our statute, which, in substance, is that no acknowledgment or promise shall be evidence of a new or continuing contract whereby ta take any case out of the operation of the statute, unless such acknowl- edgment or promise be made or contained by or in some writing sub- scribed by the party chargeable. It is to be observed, in the first place, it is not necessary- to show an express promise ; an acknowledgment will be sufficient. What, then, are the essential elements of the acknowledg- ment, to make it effectual ? " In the case of Elliott v. Leake,^ it was said : " It is not necessary that the party should acknowledge a willingness- to pay the debt ; it is sufficient that he acknowledges that he owed the debt, and that it remains unpaid. That evidence which will create aa obligation will revive that obligation, if connected with evidence that, the obligation has not been discharged." To the same effect is the case of Boyd v. Hurlbut.'' But if the acknowledgment is accompanied with conditions or circumstances which repel or rebut an intention to- pay, then it will not be sufficient to defeat the bar of tlie statute.' From these adjudications it is clear that an acknowledgment of a debt, and that it remains unpaid, though there is no expression of wil- lingness to remain bound, will avoid the bar of the statute of limita- tions, unless accompanied with conditions or circumstances whicli rebut- or repel an intention to paj-. In the present case, the deceased, by the letter, when speaking of the note in suit, says of it, " that debt I owe you." There is here an un- eqni^'ocal admission and acknowledgment of an actual subsisting debt. This is clear beyond all doubt. He then expresses his inability to pay it or any part thereof. We see nothing in the letter indicating a pur- pose not to pay, or that is inconsistent with the promise to pay, arising from the acknowledgment. The only thing left uncertain by the letter is as to when he could pay the note ; but that uncertainty does not destroy the effect of the unequivocal acknowledgment of an existing, debt.* It will be observed, however, that the court recognizes the rule that a- mere naked acknowledgment of a debt, when coupled with conditions or 1 5 Mo. 209. 99. The presumption of a promise to pay,. 2 41 Mo. 264. arising from the acknowledgment, is, from * Boyd V. Hurlbut and Mastin v. Bran- such circumstances, destroyed. ham, supra / Chambers v. Eubey, 47 Mo. * Warlick v. Peterson, 58 Mo. 408. VOL. I. — 14 210 STATUTES OF LIMITATION. [CHAP. VII. when coupled with anything whicli clearlj- indicates an intention not to pay' it, does not operate to remove the statutory' bar. In a Michigan case,^ the defendant in answer to the demand for the payment of an alleged indebtedness about to be barred by the statute of limitations, said that if she had certain papers she conld offset cer- tain accounts, and wanted time to get them. Being asked if she would extend the account for the period she desired, she signed this writing in tiie book containing the charge: "I extend this book account four months from April 30, 1886." The court held that this writing was equivalent to the acknowledgment that the debt was valid, and would become due in four months, and therefore that it was not barred by the statute. In a Texas case,^ a letter as follows : — Hamilton, lOtb August, 1887. Dear Father, — I have done ray best to raise some monej', but I ■cannot do it now, because the little monej- which I had yet, I bought wheat for, which was cheap still. I bought it at 68 cents yet, and then hauled 40 miles ; and corn for feed I must also buy, because that is very slim here, as rain was wanted. Cotton, too, don't look the best. But some money we will send you, but not all, because we must live, first, and that in Brenham we must pay too ; that was a hard lick for us. Dear father, you sent me a note that I don't sign. I will pay you some every j'ear, but whenever I can ; but I sign no more papers, for I think it is just as good without, because we all know how we stand ; but you must be satisfied with what you get every year, for I will do "whatever I can. G. Krdeger. was held not suffldent to remove the bar of the statute. Acker, P. J., delivering the opinion of the court, said : " Under proper assignment of error, it is contended that the court erred in holding that defendant's letter to plaintiff was sufficient to take the barred note out of the statute of limitations ; and this is the only question we think it neces- sary to consider. It is conceded that the original debt was barred. "When a debt is barred, the new promise relied on must acknowledge the justness of the claim, and express a willingness to pay it." " An acknowledgment which will take a debt out of the bar of the statute of limitations must be clear and unequivocal, and neither qualified by conditions nor limitations.* " Considered in the light of these authorities, we think it too clear for 1 Crane v. Abel, 11 West. Rep. (Mich.) * McDonald ». Gray, 29 Tex. 83 ; Dick 2°^- inson v. Lott, id. 173; Madox v. Hum- Kreuger v. Kreuger, 7 L. R. Ann. phries, 24 Tex. 196 ; Smith v. Fly, id. » Coles V. Kelsey, 2 Tex. 655. 853, §70.] ACKNOWLEDGMENTS. 211 argument that the letter relied on by plaintiff to take the barred note out of the operation of the statute of limitations, is not sufficient for that purpose. It does not contain a clear, unequivocal, and uncon- tlltional acknowledgment of the justness of plaintiff's demand, nor does it contain an expression of a willingness to pay. We tliink it settled by the authorities, sM^ra, that the acknowledgment to relieve the claim from the operation of the statute of limitations, must contain an un- qualified admission of a just, subsisting indebtedness, and express a willingness to pay it. If the expression of a willingness to pay is coupled witn conditions, it devolves upon the plaintiff to prove that the named conditions have taken plaee.^ " We think tJie court below erred in its construction of the letter from defendant to plaintiff." Sec. 70. Essential Requisites of an Acknowledgment. — An ac- knowledgment of the original justice of tlie claim is not sufficient ; it must go to the fact that it is due and unpaid,'' and must not be attended with any acts or expressions tiiat evince an intention not to pay it.' It must be consistent with a promise to pay,' unqualilied,^ 1 Leigh V. Lintheoum, 30 Tex. 103. 2 Clementson v. Williams, 8 Crancli (U. S.), 72 ; Wetzell u. Bussard, 11 Wheat. (U. S.) 314 ; Thompson v. Peters, 12 id. 567 ; Boyd v. Grant, IS S. & R. (Pemi.) 124 i Baxter v. Penniman, 8 Mass. 133 ; Jones V. Moore, 5 Biiin. (Peun. ) 576. A mere admission that a debt is due, and not paid, is not sufficient to remove the statute bar, when the admission is attended by expressions which repel the idea of an in- tention or desire to pay it. Gray v. Mc- Dowell, 6 Bush (Ky.), 475. A promise to pay all the notes that can be produced a{;ainst him, but at the same time assert- ing that none can be produced, does not remove the statute bar. Norton v. Colby, 5'2 111. 198. The expression in a letter written by the defendant to the plaintiff, in relation to a debt due from the former to the latter, " I feel ashamed of it stand- ing so long," is not sufficient to take the debt out of the statute. Wilcox v. Wil- liams, 5 Nev. 206. A debtor who allows an account against him to become stated, by omitting to dispute the same when pre- sented, does not thereby waive the statute. Bucklin v. Chaplin, 1 Lans. (N. Y.) 447 ; Reynolds ». Collins, 3 Hill (N. Y.), 37. An indorsement on a note, made at about the time a note was executed, "If not paid I request indulgence," is not such a continued request as estops the debtor from pleading the statute. Carr i\ Robinson, 8 Bush (Ky.), 269. ^ Senseman i'. Hershman, 82 Peun. St. 88. Striking a balance, and the settle- ment of an account, is a clear admission of a sincere indebtedness. McClelland v. West, 70 Penn. St. 183 ; Johns v. Lantz, 63 id. 324. * Yaw V. Kerr, 47 Penn. St. 333 ; Airy V. Smith, 1 Phil. (Penn.) 337 ; Bailey v. Bailey, 14 S. & R, (Peun.) 195 ; Patton V. Hassenger, 69 Penn. St. 311 ; Watson v. Stern, 76 id. 121 ; Norton v. Carpenter, 2 W. N. C. (Penn. ) 306 ; Guier v. Pearce, 2 Browne (Penn.), 35 ; Lyon v. Marclay, 1 Watts (Penn.), 271 ; Fries v. Baisselet, 9 S. & R. (Penn. ) 128 ; Beasley v. Evans, 35 Miss. 192 ; Phelps v. Sleeper, 17 N. H. 332 ; Horner v. Starkey, 27 111. 13 ; Sen- nott V. Horner, 30 id. 429 ; Grayson v. Tay- lor, 14 Tex. 672 j Hazlebacker v. Reeves, 9 Penn. St. 258 ; Webber v. Cochrane, 4 Tex. 31 ; Estate of Wetham, 6 Phil. (Penn.) 161 ; Laurence v. Hopkins, 13 Johns. (N. Y.) 288. 6 Boss V. Hershman, 83 Leg. Int. (Penn.) 306 ; Eckert v. Wilson, 12 S. & R. (Penn.) 393 ; Gilkyson i>. Larue, 2 W. & S. (Penn.) 218 ; Crist v. Garner, 2 P. & W. (Penn.) 251 ; Allison v. Pennington, 7 W. & S. (Penn.) 180 | Gleim v. Rise, 6 212 STATUTES OF LIMITATION. [CHAP. VXI.' clear, plain, unambiguous,'' and so distinct in its extent and form as to preclude hesitation as to the debtor's meaning,^ and so as to enable the court to apply its terms as the debtor intended the}- should be applied.* These rules are believed to be entirelj' consistent with the letter and spirit of these statutes, and essential to prevent the mischiefs which the statutes were intended to cure. The laxity of the rules formerly existing operated as a virtual repeal of the statutes bj- judicial legis- lation, rather than a fair application of the rules of construction ; and in this branch of the law the courts have exhibited mwe inconsist- ency and more proneness to go wrong, to carry out their notions of justice, than in any other since courts have existed. The rules stated do not preclude the raising of a promise from the recognition of a debt, where there is nothing said or done bj* the debtor inconsistent with an intention to pay it,^ but are calculated to effectuate the intention of the statutes, by giving the debtor the benefit of their protection, except in those cases where he has fairly deprived himself thereof, by having said or done that wliich the law can fairly regard as the foundation for an implied promise to paj- the debt. Formerly, if even in a casual con- versation with a stranger to the debt the debtor spoke of a claim barred by the statute, as an existing debt against him, although at the same time he declared his intention not to paj- it,^ the naked admission of the debt was deemed sufficient, although the circumstances were such as to clearlj' show that he intended to avail himself of the beneBt of the statute ; ^ and even though it was made after action brought, and after ■Watts (Penn.), 44 ; Ayresu. Richards, 12 172; Wolfinsberger v. Young, 47 id. 516 ; 111. 146 ; Stockett v. Sasseer, 8 Md. 374 ; Harbold v. Kuntz, 16 id. 210. Wakeman v. Sherman, 9 N. Y. 88 ; Lowry » Suter v. Sheeler, 22 Penn. St. 308 ; «. Dubiose, 2 Bailey (S. C), 425 ; Small- Shitler v. Bremer, 23 id. 413. wood V. Smallwood, 2 D. & B. (N. C.) L. * Watson v. Stern, 76 Penn. St.. 121 ; 336 ; Mastin v. Waugh, id. 517 ; Loomis Patton v. Hassenger, 69 id. 311. V. Decker, 1 Daly (N. Y. C. P.), 186 ; Han- 6 Cobham v. Moselev, 2 Hayw. (N. C.) cock V. Bliss, 7 Wend. (N. Y.) 267 ; Cocks 6 ; Dean v. Pitts, 10 Johns. (N. Y.) 35 ; V. Weeks, 7 Hill (N. Y.), 45 ; Bradley v. Mosher v. Hubbard, 13 id. 510. Field, 3 Wend. (N.Y.) 272; Allen w. Web- "Austin v. Bostwick, 9 Conn. 496; ster, 15 id. 284 ; Bloodgood v. Bruen, 8 Keplinger v. Griffith, 2 G. & J. (Md.) 296 ; N. Y. 362 ; Bangs v. Hall, 2 Pick. (Mass.) Mitchell v. Mitchell, 11 G. & J. (Md.) 388 ; 368 ; Mumford v. Freeman, 8 Met. (Mass.) Carroll v. Ridgway, 8 Md. 328 ; Murray v. 432 ; Bailey v. Crane, 21 Pick. (Mass. ) Coster, 20 Johns. (N. Y. ) 576 ; Shepperd 323. „. Murdock, 3 Murph. (N. C.) 218 ; Cad- 1 Senseman «. Hershman, 82 Penn. St. mns v. Dumon, 1 N. J. L 176. In Richard 83 ; AllLson o. James, 8 Watts (Penn.), v. Hannay, 4 East, 604, the defendant. In 880 ; Farley v. Kustenbader, 3 Penn. St. an affidavit to the court for leave to file a 418 ; Webster v. Newbold, 41 id. 482 ; plea of the statute, stated that, " since the Emerson v. Miller, 27 id. 278. bill of exchange. on which the action was 2 Berghaus v. Calhoun, 6 Watts founded became due, no demand for pay- (Penn.), 219; Miller v. Baschore, 83 ment had been made on him," and it was Penn. St. 356 ; Magee v. Magee, 10 id. held such an acknowledgment of the debt as removed the statute laar. §70.] ACKNOWLEDGMENTS. 213 he had pleaded the statute thereto.^ That the courts could ever have gone so far astray seems incredible, yet the reports are full of cases of the character referred to ; but at the present time a more consistent doctrine prevails, and the old theories are universally discarded. Where a person admits that the claim once existed, but also says that it has been paid in a particular mode, the plaintiff cannot, by prov- ing that the claim has not been paid in that way, revive the debt.^ 1 Stevens v. Hewitt, 30 Vt. 262. s Bangs v. Hall, 2 Pick. (Mass.) 368 ; Cowan o. Magauran, 1 Wall. (U. S. ) 66. In Marshall v. Dalliber, 5 Conn. 480, the defendant admitted that the note sued upon was originally just, but insisted-that it had been paid by his wife's services. It was proved' that the note had not been so paid. The court held that the admission did not remove the statute bar. "The principles of law," said Bristol, J., " ap- plicable to this question have frequently been the subject of judicial construction, and are now settled in the courts of the United States, the State of New York, and our own State, in a manner moi'e conform- able to the intent of the legislature than ■many English cases. Clementson v. Wil- liamson, 8 Craneh (U. S.), 72 ; Sands v. Gelston, 15 Johns. (N. Y.) 511 ; Lord e. Shalor, 3 Conn. 131. These principles," he adds, "require that to do away the statute of limitations a defendant must voluntarily relinquish the protection it was intended to afford, either by an ex- press promise to pay the debt, or by ac- knowledging that it is due, from which the law raises a promise to pay, and which is tantamount to an express promise. " If such are the settled principles to which our decision must acquiesce, the only remaining inquiry must be, whether the defendant, by his acknowledgment, did admit the continued existence of the orig- inal debt, or promise to pay it. This he might do, either in express terms, or by strong implication from other language which he might use. " It has not been contended that the language used by the defendant contained a promise to pay the debt, or an acknowl- edgment of its justice, either express or implied. On the contrary, the defendant denied his liability, and declared the debt was satisfied, by the services of his wife, while she lived in the family of the testator. " Now, whatever doubt may have ex- isted in the decided cases, whether the acknowledgments relied on did or did not amount to an admission of the debt, or a promise to pay it, still, such admission or promise, either by the defendant himself, or some other person referred to by him, has been generally held as absolutely neces- sary to take a case out of the statute ; and the adjudged cases here generally turned upon the true import of the evidence re- lied on, rather than on any serious doubts respecting the law. But in the present case there is no doubt relative to the im- port of the defendant's admissions ; nor can any inference be made against the de- fendant, unless his declarations relative to the mode of payment are suffered to be dis- proved, and what was in fact a denial of the debt on his part thus converted into an absolute acknowledgment of the debt and a promise to pay it. " It is said, however, that if the plain- tiff can disprove the mode of payment al- leged by the defendant, this will raise a presumption that the debt is still due, and be equivalent to a direct acknowledgment of the debt by the defendant ; and this principle receives considerable countenance from the case of Hellings v. Shaw, 7 Taunt. 608. In delivering his opinion in that case, Chief JirsTiCB Gibbs observes: ' That where a defendant states, not that a debt remained due, but that it is discharged by pa,rticular means, to which he has, with pre- cision, referred himself, and where he has designated the time and mode so strictly that the court can say it is impossible it had been discharged in any other mode, there the court have said, if the plaintili can disprove that mode, he lets himself in to recover, by striking from under the de- fendant the only ground upon which he professed to rely.' " But if the authority of this case were unquestionable, I should think it admitted 214 STATUTES OF LIMITATION. [chap. yir. Where a general indebtedness exists, a. part of which is barred by the statute and a part not, a general acknowledgment will not remove the of mucli doubt whether the mode of pay- ment alleged by the defendant was dis- proved or falsified by the testimony of the plaintiff. The evidence of the plaintiff did not disprove the services of the defendant's wife, or show that those services had been satisfied by the testator in some other way. The services might have been rendered to the testator, and not charged on book, and the defendant might have bad a fair claim on the testator for the value of such ser- vices, whicli he recognized ; and he might have agreed that such services should satisfy the note, although it was dated after such services were rendered. To conclude that the defendant's language meant nothing but a strict and technical payment would be absurd. The first an- swer to this authority, therefore, is, that the special mode of payment alleged by the defendant was not disproved by the plaintiffs evidence ; and, of course, there is no implied admission of the debt. "This court, however, are not bound by this precedent ; nor can they properly follow it, unless satisfied of its being rea- sonable and just. We have looked through the English decisionsforthe adjudged cases, from which the position of Chiei' Justice GiBBs is derived; but we have looked in vain. In the subsequent case of Beale ». Nind, 4 B. & Aid. 568, the Court of King's Bench appear dissatisfied with the posi- tions taken by the Chief Justice of the Common Pleas. Chief Jpsticb Abbott said: 'He was by no means satisfied that it was competent for the plaintiff to falsify what the defendant said as to the demand being paid; ' and Batlby, one of the most learned and accurate judges then on the court, says ; ' I am certainly not aware of the cases to which my Lord Chief Jus- tice GiBBS refers, to support that proposi- tion.' In another report of the same case, decided by the Common Pleas, it is said Chief Justice Gibbs ' confined his ob- servation to the case of a defendant claiming his discharge under a written instrument, to which he, with precision, refers.' The weight of English authori- ties, therefore, is not much in favor of al- lowing a plaintiff to disprove the special mode of payment alleged by the defendant, and we are satisfied that, whether counte- nanced by these authorities or not, it is opposed to principle ; and we feel disin- clined to make further inroad upon » statute of great public utility, especially when judges are constantly lamenting that too many exceptions have been made al- ready. A debt being barred by the statute of limitations, the defendant is entitled to take advantage of it, unless he consents to relinquish its protection either expressly or by evident implication. The truth or falsehood of the defendant's statement as to paying the demand appears to me imma- terial to the true point of inquiiy, which, in all such cases, should be, whether the defendant has, by an express or implied recognition of the debt, voluntarily re- nounced the protection of the statute. We think this should depend on the defendant himself, and on his own declarations, and not on the disproving the truth of these declarations, and thereby converting what was intended as an absolute denial of any indebtedness into an acknowledgment of such debt and a promise to pay it. It might as well be claimed if the defendant denied the execution of a note barred by the statute of limitations, and the plaintiff could prove tliat he executed it, that the defendant had forfeited the protection of the statute. No intention to waive the protection of the statute can be inferred from the declarations of payment made by the defendant, even if those declarations are proved untrue." Hancock o. Bliss, 7 Wend. (N. Y.) 267; Moore v. Columbia Bank, 6 Pet. (TT. S.) 86; Gaylord v. Van Loan, 15 Wend. (N. Y.) 308; Fillet ii. Linsey, 6 J. J. Mar. (Ky.) 337; Purdy v. Austin, 3 Wend. (N. Y.) 187; Cambridge V. Hobart, 10 Pick. (Mass. ) 232; Clark v. Dutcher, 9 Cow. (N. Y.) 674; Tichenor v. Colfax, 4 N. J. L. 153; Exeter Bank ■«. Sul- livan, 6 N. H. 124; Eussell v. Copp, 5 id. 154; Gold i>. Whitcomb, 14 Pick. (Mass.) 188; Bailey u Bailey, 14 S. & E. (Penn.) 195; Braekett „. Mountfort, 12 Me. 72; Frey v. Kirk, 4 G. & J. (Md.) 509. §71.] ACKNOWLEDGMENTS. 215 bar, because it may have been intended simply to apply to the indebted- ness within the statute.^ Sec. 71. Bare Acknowledgment A naked acknowledgment of a debt as due and unpaid, not coupled with any condition or words indicating an intention not to pay, is held in some of the States suffi- cient to remove the statutory bar.'' But in all cases, except where 1 Morgan v. Walton, 4 Penn. St. 32; Suter V. Sheeler, 22 id. 308. In Wessner V. Stein, 97 Penn. St. 322, a question as to the quality of an acknowledgment suffi- cient to take a case out of the statute was ably considered and discussed by Mbecur, J. "It, is settled," said he, "that the acknowledgment or admission must be a clear and unambiguous recognition of an existing debt, and so distinct and expres- sive as to preclude hesitation as to the debtor's meaning, and as to the particular to which it applies, and must be consistent with .i promise to pay." In McClelland i;. West, 59 Penn. St. 487, it was held that the words, "I agree to settle this bill," were not sufficient to remove the statute bar, as they only amounted to a promise " to examine and adjust it," and did not warrant the implication of a promise to pay. When a debtor, on being presented with a bill, said, " I will attend to it," it was held not to amount to an acknowledg- ment of, or promise to pay, the debt. Mar- queze v. Bloom, 22 La. An. 328. But in Bliss V. AUard, 49 Vt. 350, » letter in which the debtor spoke of a " settlement, " and expressed a willinguess "to leave it out to be settled," but thought they had better settle it themselves, was held suffi- cient. In Wessner v. Stein, 97 Penn. St. 322, the court, by Mercitr, J., say, "The debt is not destroyed by the statute of limitations, but the right of action or remedy is gone. When that is restored, the declaration is still on the original con- tract, and not on the acknowledgment as a new promise ; such acknowledgment is but a waiver of the statutory defence." Suter V. Sheeler, 22 Penn. St. 310. Where a debtor gives to his creditor the note of a thitd person, payable at a future day, as collateral security for a debt upon which the statute has begun to run, it operates as an acknowledgment' of the whole debt, the same as a part payment in money would, but it only operates to sus- pend the statute and start it anew, from the time of the delivery of such note; and a payment upon such note by the jierson against whom the note so given as col- lateral security exists does not operate as a payment by the debtor himself, or have the efi'ect to renew the principal debt. Smith b. Ryan, 66 N. Y. 352. The original debt must first be established, then a. clear, distinct, and unequivocal 'acknowledgment made within six years is sufficient to remove the statute bar. Mbecitr, J., in Wessner v. Stein, 97 Penn. St. 326; Watson v. Stein, 76 id. 121; Palmer v. Gillespie, 9 W. N. C. (Penn.) 535. In Louisiana, it is' held that parol evidence is admissible to prove an ac- knowledgment of a debt before the statute has run thereon. Bernstein v. Hicks, 21 La. An. 179 ; Harrell v. White, 21 id. 195 ; and while the debtor is alive. But it is held to be inadmissible to prove an acknowledgment of a party deceased for the purpose of establishing liability against his estate. Succession of Hillebrandt, 21 La. An. 350. So, too, it is held inadmis- sible to establish a renunciation or waiver of the defence of the statute after the debt is barred. Offut v. Chapman, 21 La. An. 293. In Iowa, by sec. 1670 of the code, an admission that a debt is due and un- paid is given the same effect to take it out of the operation of the statute as a new promise. 2 Black V. Eeybold, 3 Harr. (Del.) 528; Lee V. Polk, 4 McCord (S. C), 215; Lord V. Shaler, 3 Conn. 131; Blder v. Dyer, 26 Kan. 604 ; Bissell v. Jordan, 16 Ohio St. 508. As that "it is just and unpaid." Beasley v. Evans, 35 Miss. 192. "The debt is a just and honorable debt, and I do not consider it outlawed." Estate of Wetham, 6 Phil. (Penn.) 161. "It is a debt which I shall have to pay, and in- tend to pay." Hall w.Creswell, 12 G. & J. (Md.) 36. A bare acknowledgment of a debt made before the stat\ite has run. 216 STATUTES OP LIMITATIOK. [chap. VII. the statute otherwise provides, it is held that the acknowledgment must be such that a promise to pay the debt can fairly be implied Rodrigue v. Fronty, 2 Brev. (S. C.) 31; Hazlebacker v. Reeves, 9 Penn. St. 258, admitting that a note is genuine, though at the same time he refused to pay it, has heen held sufficient, Cobham v. Mosley, 2 Hayw. (N. C.) 6; Cobham u. Administra- tors, 2 id. 6 ; but thLs cannot be regarded as accurate, because it expressly rebuts any promise. But an acknowledgment that certain notes against him exist in the plaintiff's favor, but that he has an ac- count to go against them, with a promise to call in a certain time and have the notes and accounts settled, is sufficient. Chapin V. Warden, 15 Vt. 660. So a statement that he is willing to settle the claim if established, but accompanied with a denial that it can be established, has been held sufficient, if the claim is established. Pad- dock V. Colby, 18 Vt. 485. The general rule is that an acknowledgment, to take a debt out of the statnte, must be an un- qualified acknowledgment of a previous subsisting indebtedness which the party is willing to pay, Weaver i'. Weaver, 5i Penn. St. 152 ; Jackson v. People, 40 111. 405 ; Conover «. Conover, 1 K. J. Eq. 403 ; Turner o. Martin, 4 Kobt. (N. Y.) 661 ; Allen B. Webster, 15 Wend. (N. Y.) 284; Waples V. Layton, 3 Harr. (Del.) 508; Stafford V. Eichardsoii, 15 Wend. (N. Y.) 302; Horlbeck v. Hunt, 1 McMuU. (S. C.) 197 ; Sherman v. Wakeman, 11 Barb. (N. Y.) 254, 9 N. Y. 85 ; and that the debt continues due at the time of the ac- knowledgment, Mellick 17. De Seelhorst, 1 111. 171; Bangs v. Hull, 2 Pick. (Mass.) 368; Barlow v. Bellamy, 7 Vt. 54; French V. Frazier, 7 J.J. Mar. (Ky.) 425; Russell i>. Goss, M. & Y. (Tenn.) 270; Wetzell v. Bussard, 11 Wheat. (U. S.) 310; Belles v. Belles, 12 N. J. L. 339; Purdy v. Austin, 3 Wend. (N. Y.) 187. But the doctrine of Paddock v, Colby, ante, is sustainable, upon the gi'ound that what was said by the debtor was not a. mere acknowledgment, but au express promise to pay the debt, if any existed ; in other words, an express, conditional promise to pay, and the condi- tion is .satisfied, and the promise made ab- solute when the debt is established. An admission that a note sued on was made by the defendant, but that he supposed it was paid by a joint maker, which he could prove, has been held sufficient. Dean v. Pitts, 10 Johns. (N. Y.) 35; Mosher v. Hubbard, 13 id. 510. But see Bell v. Bow- land, Hard. (Ky.) 301, where an acknowl- edgment by the defendant was that he once owed the debt, but he supposed his brother paid it, and if his brother had not paid it, he owed it yet, was held insufficient to remove the statute bar. See also Gardner 41. Tudor, 8 Pi(ik. (Mass. ) 206. In Brackett ■V. Mouutfort, 12 Me. 72, an acknowledg- ment that the "debt was once due, but that he had paid it years before by having an account against him," was held not suffi- cient, although the defendant filed no ac- count in offset, and oB'ered no proof that he ever had an account against the plain- tiff. In Penn v. Crawford, 16 La. An. 255, the defendant stated that "he thought the note had been settled, but if not, he would arrange it." Upon a later occasion he said " he would see the plaintiff and settle the amount of the note ; " and it was held that this evidence was too doubtful, if uncor- roborated, to inteiTupt the statute. In a Maryland case, Frey v. Kirk, 4 G. & J. (Md. ) 509, the maker of a note, when .shown it, and asked if it was his, replied ' ' yes ; " but when asked what ai-rangement he could make of it, replied, "As to that I cannot say;" and upon being told that if it was not settled it would be sued, said, '* You may save yourself the trouble, as I have taken the benefit of the insolvent law;" it was held that this could not he con- strued into an existing indebtedness, so as to remove the .statutory bar. See also Danforth v. Culver, 11 Johns. (N. Y.) 146, where the defendant admitted the execu- tion of the note by him, but said that it was outlawed, and he intended to avail himself of the statute; and it was held not a sufficient acknowledgment to take the case out of the statute. See also Smith v. Freel, Add. (Penn.) 291, where an admis- sion of the genuineness of a note, accom- panied with a statement that he had paid it, was held not sufficient. A letter which acknowledges a subsisting indebtedness is sufficient to take the case out of the stat- §71.] ACKNOWLEDGMENTS. 217 therefrom, or it is inoperative. That is, it must be made in such a manner and under such circumstances as to indicate a willingness and intention to pay it.^ Thus, where a debtor, upon being, presented with a claim, said, " I will attend to it," it was held not such an acknowl- edgment as would remove the statute bar.-' " It does not," saj- the court, " import an acknowledgment of the plaintiff's riglit. The state- ment that a debtor will attend to a demand does not prove that the creditor has a right to demand payment, or that the bill is correct, and the debtor bound to pay it ; at most it merely implies that the debtor will inquire into its correctness, and his liability- to pay it." Nor, where a debtor under proceedings in insolvencj' inserts in a schedule of his debts, filed and sworn to by him, a claim which is barred by the statute, can it be said that he thereby acknowledges the debt under such cir- cumstances as will support an implied promise to pay the debt." Such an acknowledgment may be said to be compulsory, as the debtor is compelled bj' law to embrace it in his schedule, or take the chances of having the debt urged against him thereafter. Such an acknowledgment, under the present state of the law, can have no more effect to renew the debt than a compulsory payment would have.* But embracing such ute, as it is in writing and signed by the party to be charged. Chace v. Higgins, 1 T. & C. (N. Y. ) 220. But a letter in effect acknowledging the existence of an indebt- edness, and proposing a compromise, but distinctly avowing a determination not to pay if the compromise is rejected, will not remove the statute bar, Creuse v. Defiga- niere, 10 Bosw. (N. Y.) 122 ; nor is an ad- mission of the original indebtedness in an answer under oath, denying the defendant's liability to pay it, Com. Mut. Ins. Co. w. Brett, 44 Barb. (N. Y.) 489. See also Bloodgood V. Bruen, 8 N. Y. 362, where such an admission in an answer, filed to a bill in equity by a third person, was held not sufficient In Clementson u. Williams, 8 Cranch (U. S.), 74 ; Marshall, C. J., said, "It has frequently been decided that an acknowledgment of a debt barred by the statute of limitations takes the case out of the statute and revives the original cause of action. It is not sufficient to take the case out of the .statute that the claim should be proved or be acknowledged to have been originally just: it must go to the fact that it is still due." Andrews «. Brown, 1 Eq. Ca. Ab. 305, 12 Owen's Abr. 192 ; Yea V. Fouraker, 2 Burr. 192 ; Trueman v. Fentou, 2 Cowp. 548 ; Lloyd v. Maund, 2 T. R. 760 ; Rucker v. Harmony, 4 East, 604, n. ; Lawrence v. Worrall, Peake's Gas. 93 ; Jackson v. Fairbanks, 1 H. Bl. 340 ; Bailey v. Lord Ichiquiu, 1 Esp. 435 ; Clark V. Bradshaw, 3 id. 155 ; Peters v. Brown, 4 id. 46 ; Bryan v. Horseman, 4 East, 599, Gainsford v. Grammar, 2 Camp. 9; Sluby v. Champlin, 4 Johns. (N. Y.) 464; Baxters. Penniman, 8 Mass. 133 ; Leaper v. Tatton, 16 East, 418 ; Dean u. Pitts, 10 Johns. (N. Y. ) 35. ' ' The principle which governs in the construction of these statutes is, that the presumption arises that the defendant, from the lapse of time, has lost the evi- dence which would have availed him in his defence, if seasonably called upon for pay- ment. But when this presumption is re- butted by an acknowledgment of the defendant within six yeare, the contract is not within the intent of the statute." Paksons, C. J., in Baxter v. Penniman, ante; Lordi;. Shaler, 3 Conn. 131 ; Thomp- son V. Osborn, 2 Stark. 98. 1 Georgia Ins. Co. v. Elliott, Taney (U. S.), 130. ' Marqueze v. Bloom, 22 La. An. 328. ' Georgia Ins. Co. v. Elliott, ante ; Richardson I). Thomas, 13 Gray (Mass.), 381 ; Roscoeo. Hale, 7 id. 274 ; Hidden v. Cozzens, 2 R. I. 401 ; Christy ». Fleming- ton, 10 Penn. St. 129 ; Stoddard b. Doane, 7 Gray (Mass.), 387 ; Brown v. Bridges, 2 Miles (Penn.) 424. * Kew York Belting, &c. Co. v. Jones, 218 STATUTES OF LIMITATION. [chap. TII. a debt in a schedule of his debts, made at the time of the making of his will, being a voluntary act, and evincing an expectation and willing- ness that it be paid, has been held suflScient,^ although even this doc- trine is doubtful; and in Massachusetts,^ where, after the testator's death, a mortgage-deed duly executed, but not delivered, was found among the debtor's papers, to secure the payment of a demand barred by the statute, it was held not a suflBcient acknowledgment of the in- debtedness to take the debt out of the statute ; and this would not seem to be inconsistent with the doctrine of the Tennessee case, because in that case nothing more remained to be done to give validity to the will ; while in the Massachusetts case delivery was essential to give validity to the mortgage, and never having been delivered, it was inopera- tive. In a recent case in Missouri ° it was held that a demand is not taken out of the operation of the statute of limitations by a written acknowledgment found among the debtor's papers after his death. The court said : " There is a conflict of the authorities as to whether an acknowledgment or promise in writing, signed by the party to be bound, 22 La. An. 530. If a debtor orally prom- ises that if the creditor will wait he shall be paid from a provision to be made for him in the debtor's will, and if, afterwards, the debtor makes a will containing a general bequest for the creditor, and sub- sequently revokes this will, nothing has been done which affects or suspends the running of the statute. Petrie v. Mott, 38 Hun (N. Y. ), 259. Under a foreclosure of a mortgage more than twenty years old, the fact that the defendant took a deed for part of the premises, within twenty years, and accepted the title subject to the mortgage, is a sufficient acknowledgment to take the case out of the statute. Moore V. Clark, 40 N. J. Eq. 162. The N. J. statute declares that twenty years' possession of mortgaged land by the mortgagee, after default, shall forever bar the right of redemption. After such pos- session had continued for twenty-nine years the mortgagee attempted, in pur- suance of his contract of sale, to procure a strict foreclosure. It was held not an ad- mission of the right to redeem, which con- stituted a waiver of the bar. Chapin v. Wright, 41 N. J. Eq. 438. A claim against a deceased debtor was duly proved in, and passed by the orphan's court. With leave of court the adminis- trator retained money to pay it with other claims, and his account so showed. It was held, that, notwithstanding, when sued, he could plead the statute. Washington Market Co. v. Beckley, 4 Mackey (D. C), 163. When the statute declares that only a written promise shall take a debt out of operation of the statute, the doctrine of estoppel has no application to an oral promise. Hill v. Perrin, 21 S. C. 356. A memorandum unsigned and undeliv- ered is not ' ' a written acknawledgment of an existing liability," removing the bar of the statute. Abercrombie v. Butts, 72 Ga. 74 ; 53 Am. Rep. 832. A joint suit against a, firm is not saved from the bar of the statute by the individual acknowledg- ment of one member and his promise to pay. Ford V. Clark, 72 Ga. 760. An acknowl- edgment will be sufficient, although con- tained in an application made by a debtor to an insurance company for a policy on his life, when made at the request of the debtor and for his benefit ; and the ac- knowledgment may be made before the debt is barred, to enable the surety again to become liable, there must be a new con- sideration. His promise, not based on a consideration, will not bind him. Bridges V. Blake, 106 Ind. 332. 1 Rogers v. Sothern, i Baxter (Tenn.), 67. 2 Merriam v. Leonard, 6 Cush. (Mass.) 151. 8 Allen V. Collier, 70 Mo. 138. §72.] ACKNOWLEDGMENTS. 219 if made to a stranger, would be sufficient to take a ease from under the operation of the statute of limitations ; but there is no conflict as to the necessity for such a promise of acknowledgment being made to some person, either to the creditor or his representative, or to a stranger. A promise or acknowledgment implies that it is made to somebodj'. and in every promise there must necessarily be a promisor and promisee. A mere writing acknowledging a debt, which is retained by the person making it, and which is never delivered to the creditor or any one else, cannot have the effect of preventing the operation of the statute." Sec. 72. Promise to Settle. — A mere promise "to settle" a demand has been held not sufficient to support a promise to pay it.^ But in South Carolina a promise " to settle " has been held equivalent to a promise to pay ; " and a similar rule of construction has been adopted in North Carolina.' But in Vermont, in one case, virtually the same rule has been adopted as in Virginia ; * and such also is the rule in Pennsylvania,^ although in some of the earlier cases in that State a different rule prevailed.' Such a promise is treated merely as a promise to examine the claims and adjust the balance.' But we ap- prehend that the effect to be given to such words must depend largely upon the circumstances of each case, in view of all that was said iipon the occasion, and the circumstances under which they are used,' as 1 Bell V. Crawford, 8 Gratt. (Va.) 110 ; Succession of Jewell, 11 La. An. 83. Where the items of an account are read to a party, and he admits the correctness of each item, and of the whole account, hut as to certain items states that he thought the whole or a part of them had been paid by his son, and that he thought the ac- count was correct, and that he would see his creditor, and settle with him ; such admissions do not show a new promise so as to take the case out of the statute of limitations. Ayres v. Richards, 12 111. 146. 2 Johnson I). Bonnetheau, 3 HiU (S. C), 15. ' McLin V. McNamara, 2 D. & B. (N. C) Eq. 82. * Brayton v. Rockwell, 41 Vt. 621. See also Currier v. Lockwood, 40 Conn. 349. But in Vermont, as elsewhere, the rule is that the question as to whether a promise to settle a demand amounts to a promise to pay it, will depend upon all the circum- stances attending the use of the expression. Thus, in Bowman v. Downer, 28 "Vt. 532, where a note was given with the agreement that a. certain account should be settled and appUed thereon, it was held a sufficient promise to take the debt out of the statute. In another case. Hunter v. Kittredge, 41 Vt. 359, an unqualified promise to settle book-accounts barred by the statute was held to amount to a direct admission of unsettled accounts existing between them at the time ; and that such promise to settle accounts, when unaccompanied with any unwillingness to pay whatever bal- ance might be due, is sufficient to raise a promise to pay. 6 Wearer v. Weaver, 54 Penn. St. 152. 6 Jones V. Moore, 5 Binn. (Penn.) 573 ; Wells V. Pyle, 1 Phila. (Penn.) 21 ; Patton V. Ash, 7 S. & E. (Penn.) 116 ; Miles v. Moodie, 3 id. 211. ' McClelland .-. West, 59 Penn. St. 487. ' See opinion of Setmour, C. J., in Cur- rier V. Lockwood, ante. In Bliss v. Allard, 49 Vt. 350, a letter in which the debtor spoke of "settlement," and expressed his wish to le^Tc the claim out " to be settled," but thought "they had better settle it themselves," was held an unequivocal ac- knowledgment of an unsettled account, and sufficient to take the claim out of the .statute, there being no disavowal of wil- lingness to pay. 220 STATUTES OF LIMITATION". [CHAP. VII. an acknowledgment of a debt to be operative need not be entirely by •words, but may arise both from what was said and done.^ In a Lou- isiana case,'' the claim sued upon was presented to the debtor upon two occasions. Upon the first he said he " thought the note had been settled, but if not, he would arrange it ; " on the second occasion he said, " he would see the plaintiff and settle the amount of the note ; " and the court held that this, of itself, standing alone, was not sufficient to interrupt prescription.' In a case in the United States Supreme Court,' the court says : " The principles of law by which this case is to be governed are clearly settled by a series of decisions of this court. The statute of limitations is to be upheld and enforced, not as resting only on a presumption of jDayment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But in order to continue or to revive the cause of action, after it would otherwise have been barred by the statute, there must be either an express promise of the debtor to pay that debt, or else an express acknowledgment of the debt, from which his promise to pay it may be inferred. A mere acknowledgment, although in writing, of the debt as having once ex- isted, is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowl- edgment of the debt as still subsisting as a personal obligation of the debtor.^ 1 Whitney v. Bigelow and Currier v. become his sureties for a certain debt, and Lockwood, (Wfe. See fos<, chapter on Part had paid it, and that he was desirous to Payment. secure them aa far as he could, and as- " Penn ». Crawford, 16 La. An. 255. signed to one of them certain bonds in ' In Barnard v. Bartholomew, 22 Pick, trust to collect the money and distribute it (Mass. ) 291, the defendant wrote to the equally among them, was admitted in evi- plaintiff; "I will thank you to let me dence in an action by one of them against have your account that you hold against him for money paid, to take the case out of me ; also I will thank you to state the the statute of limitations of Virginia. The credit? you have given me. You may de- exact form of the deed is not stated in the pend at seeing me at your office on Mon- report, but that it expressly recognized the day next. I will endeavor to settle all my debt to the plaintiff to be still due is evi- accounts with you. Perhaps I shall not dent from the opinion, in which Chief be able to pay the money, if not, we can Justice Marshall said : "Although the find some way to settle ; " and it was held court is not willing to extend the effect of sufficient. In this case there is enough to casual or accidental expressions farther found a promise to pay upon, independent than it has been, to take a case out of that of the promise to settle. statute, and although the court might be * Shepherd v. Thompson, 122 U. S. of opinion that the cases on that point 231- have gone too far, yet this is not a casunl s Id Shepherd v. Thompson, ante, the or incautious expression ; the deed admits court reviewed the case as follows : the debt to be due on the 15th of July, In King v. Riddle, 7 Cranch, 168, a 1804, and five years had not afterwards deed, dating July 15, 1804, by which the elapsed before the suit was brought." defendant recited that certain persons had In Clementsou v. Williams, 8 Cranch, §73.] ACKNOWLEDGMENTS. 221 Sec. 73. Tailure to deny Liability. Expressions of Regret, &c. — The fact that a debtor, upon being called upon for payment, does not 72, in an action on an account against two partners, one of whom only was served with process, a previous statement of the other, upon the account being presented to him, "that the said account was due, and that he supposed it had been paid by the defendant, but had not paid it him- self, and did not know of its ever being paid," was held insu£Scient to take the account out of the statute; and Chief Justice Marshall said : " The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away. In this case there is no promise, conditional or unconditional, but a simple acknowledgment. This acknowl- edgment goes to the original justice of the account ; but this is not enough. The statute of limitations was not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not then sufficient to take the case out of the act, that the claim should be proved or be ac- knowledged to have been originally just ; the acknowledgment must go to the fact tliat it is still due." Chief Justice Marshall afterwards pointed out that in that case, although the partnership had been dissolved before the statement was made, the case was not de- termined upon that point, but upon the insufficiency of the acknowledgment ; and added that, upon the principles there ex- pressed by the court, " an acknowledgment which will revive the original cause of action must be unqualified and uncondi- tional. It must show positively that the rli'bt is due in whole or in part. If it be connected with circumstances which in any manner affect the claim, or, if it be condi- tional, it may amount to a new assumpsit for which the old debt is a sufficient con- sideration ; or if it be construed to revive the original debt, that revival is condi- tional, and the performance of the con- dition, or a readiness to perform it, must be shown. " Wetzell v. Bussard, 11 Wheat, 309. In Bell V. Morrison, 1 Pet. 851, Mr. Justice Story fully discussed the subject, and, after dwelling on the importance of giving the statute of limitations such sup- port as to make it " what it was intended to be, emphatically, a statute of repose," and "not designed merely to raise a pre- sumption of payment of a just debt, from lapse of time ; " and repeating the passages, above quoted, from the opinions in Cleraentson v. Williams and Wetzell o. Bussard, said : " We adhere to the doc- trine thus .stated, and think it the only ex- position of the statute which is consistent with its true object and import. If the bar is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate ; and if any conditions are annexed, they ought to be shown to be performed. If there be no express promise, but a promise is to be raised by implication of law from the ac- knowledgment of the party, such atknowl- edgment ought to contain an unqualified and direct admission of a previous, subsist- ing debt which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay j if the expression be equivocal, vague, and inde- terminate, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in diflferent vpays, we think they ought not to go to a jury as evidence of a new promise to revive the cause of action." Again, in Moore v. Bank of Columbia, 6 Pet. (U. S.) 86, the court, speaking by Mr. Justice Thompson, after referring to the previous cases, re-affirmed the same doctrine, and said ; " The principle clearly to be deduced from these cases is that in addition to the admission of a present sub- sisting debt, there must be either an ex- press promise to pay, or circumstances from which an implied promise may fairly be presumed." In Eandon v. Toby, 11 How. 493, the agreement, which was held to take a case out of the statute, contained not only a pledge of property to secure the notes sued on, but an express stipulation 222 STATUTES OF LIMITATIOlSr. [chap, vii; deny the validit}' of the claim cannot be regarded as such an acknowl- edgment thereof as will raise a promise to pay it. Thus where, upon that the notes should remain in as full force and effect as if they were renewed. In Walsh v. Mayer, 111 U. S. 31, in an- swer to a letter from the holder of a note secured by mortgage, calling attention to the want of insurance on the mortgaged property, and saying ; "The amount you owe me on the |7,500 note is too large to be left in such an unprotected condition, and I cannot consent to it," the mortgagors wrote to him that they expected to insure in about four months for twice that amount, and added : " We think you will ran no risk in that time, as the property would be worth the amount due you if the building was to burn down." This was held to be a sufficient acknowledgment, upon the ground that the words, both of tlie plain- tiffs letter and of the defendant's reply, were in the present tense, and designated a subsisting personal liabilty, and that the unconditional acknowledgment of that liability, without making any pledge of property or other provision for its pay- ment, carried an implication of a personal promise to pay it. The case was decided upon its own facts, and no intention to modify the principles established by the previous decisions was expressed or enter- tained by the court. Within a year after- wards, in the latest case on the subject, the court expressly re-affirmed those prin- ciples. Fort Scott V. Hickman, 112 U. S. 150. In full accord with these views are the decisions in England under Stat. 9 Geo. IV. ohap. 14, known as Lord Ten- terdeu's Act, which only restricts the mode of proof by requiring that, in order to con- tinue or revive the debt, an "acknowledg- ment or promise shall be made by or con- tained in some writing, to be sipied by the party chargeable thereby." The Eng- lish judges have repeatedly approved the statement of Mr. (afterwards Chief Jus- tice) Jervis, that the writing must either contain an express promise to pay the debt, or be "in terms from which an unqualified promise to pay it is necessarily to be im- plied." Everett v. Robertson, 1 El. & El. 16, 19; Mitchell's Claim, L. E. 6 Ch. 822, 828 ; Morgan v. Rowlands, L. B. 7 Q. B. 493, 497 ; citing Jervis' New Kiiles, 4th edition, 350, note. And it has been often held that when the debtor, in the same writing by which he acknowledges the debt, without expressly promising to pay it, agrees that certain prop- erty shall be applied to its payment, there can be no implication of a personal prom- ise to pay. Kentledge v. Kamsay, 8 Ad. & El. 221;"s- 0. 3 Nev. & P. 319; Howcutt V. Bonser, 3 Exch. 491; Cawley v. Furnell, 12 C. B. 291; Everett v. Robertson, above cited. The law upon this subject has been well summed up by Vice-Chancellor WiGRAM, as follows ; " The legal eifect of an acknowledgment of a debt barred by the statute of limitations is that of a prom- ise to pay the old debt ; and for this pur- pose the old debt is a consideration in law. In that sense, and for that purpose, the. old debt may be said to be revived. It is revived as a consideration for a new prom- ise. But the new promise, and not the old debt, is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that sim- ple a^kaowledgment a promise to pay it ; for which promise the" old debt is a suffi- cient consideration. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him." Philips v. Philips, 3 Hare, 281, 299, 300; Buckmaster v. Eussfll, 10 C. B. N. s. 745, 750. In the most recent English case that has come under our notice, Lord Justice BowBN said : " Now, first of all, the ac- knowledgment must be clear, in order to raise the implication of a promise to pay. An acknowledgment which is not clear will not raise that inference. Secondly, supposing there is an acknowledgment of a debt which would if it stood by itself be clear enough, still, if words are found com- bined with it which prevent the possibility of the implication of the promise to pay arising, then the acknowledgment is not clear, within the meaning of the defini- tion," " because the words express the les- ser in such a way as to exclude the greater. " Green v. Humphreys, 26 Ch. D. 474; s. o. 53 L. J. N. .s. Ch. 625, 628. In the light of the principles established by the au- §73.J ACKNOWLEDGMENTS. 223 being called upon for payment, the defendant did not object thereto, but said " he thought he had paid it, and had the receipt at home," it was held not sufBoient, even though it was shown that he had not paid the debt, and had no receipt therefor.-' Where a debtor, among other things. thorities above referred to, it is quite clear that the instrument signed by the de- fendant on June 21, 1877, did not take the plaintifTs debt out of the statute. The instrument referred to is as follows : " In consideration of the indebtedness de- scribed In the deed of trust to William Thompson, trustee, executed March 10, 1873, and recorded in Liber No. 712, folio 128, of the land records of the District of Columbia, the demand and claim of A. C. Bradley to the use of A. E. Shepard and others against the United States for the use and occupation of the premises No. 915 E. Street Northwest, and all the pro- ceeds thereof, the moneys derived there- from, are hereby pledged and made appli- cable to the payment of said indebtedness, with interest thereon at the rate of eight per cent, per annum until paid ; and it is hereby covenanted and agreed that any draft or check issued in payment or part payment of said claim shall be indorsed and delivered to the trustee named in said trust, and the proceeds thereof, less all proper costs and charges, be applied to the payment of said indelstedness, with inter- est as aforesaid, or to so much thereof as the sum or sums of money so received is or are sufficient to pay. Witness our hands this 21st day of June, 1877." This instrument contains no promise of the defendant personally to pay that debt, and no acknowledgment or mention of it as an existing liability. It begins with a reference, by way of consideration only, to the original debt, designating it as " the indebtedness described in the deed of trust " executed to the plaintiff at the time when the debt was contracted. Then fol- lows a pledge of a certain claim of the de- fendant against the government, and its proceeds to secure the payment " said in- debtedness, with interest thereon at the rate of eight per cent, per annum until paid." This interest ia mentioned, not as part of the consideration, or of the original debt, or as anything for which the defen- dant is liable, but only as something to the payment of which the claims pledged shall be applied. And the instrument concludes with a promise of the defendant that the proceeds of the claim pledged shall " be ap- plied to the payment pf said indebtedness, with interest as aforesaid, or to so much thereof as the sum or sums of money so re- ceived is or are sufficient to pay." Although the old debt is expressly called, as it is in law, the consideration for the new agreement, and not the old debt is the measure of the plaintiff's right. The provisions for the payment of the debt and interest out of a particular fund ex- clude any implication of a personal promise to pay either. The whole instrument clearly evinces the defendant's intention in executing it to have been that the pro- perty pledged should be applied, so far as it would go, to the payment of the debt and interest, and not that his own personal liability should be increased or prolonged in any respect. To imply from the terms of this instru- ment a promise of the defendant to pay the debt himself would be, in our opin. ion, to construe it against its manifest intent, and to fritter away the statute of limitations. 1 Conwell V. Buchanan, 7 Blackf. (Ind.) 537. See also Brackett v. Mountfort, 12 Me. 72. In Gardner v. Tudor, 8 Pick. (Me^ss.) 206, in an action on a note the defendant said " he supposed the note was paid by the land mortgaged ; that he was willing to do what was right ; that he would make some small additional pay- ment to settle the business ; but that, if the plaintiff thought proper to sue without taking the land, he should resist the suit ; " and it was held not such an acknowledg- ment as would warrant the inference of a promise to pay the note. In Cambridge V. Hobart, 10 Pick. (Mass.) 232, the de- fendant, on being called upon to pay a note against him, barred by the statute; admitted that he signed the note, and said he did not know that it had been paid, but presumed it was due ; but the court held 9-X' STATUTES OF LIMITATION. [chap. vn. in a letter said, " I feel ashamed of it standing so long," this being the strongest expression used in the letter, the court held that it could not that this was not enough to take the note out of the statute. See also Parsons v. Northern, &c. Iron Co., 38 111. 430; Bangs V. Hull, 2 Pick. (Mass. ) 368 ; Marshall v. Dalliher, 5 Conn. 480. In Sanford v. Clark, 29 Conn. 457, the defendant pre- sented an offset to the plaintiff's demand, and the plaintiff pleaded the statute there- to ; and the defendant, for the purpose of repelling the statute, proved that on the trial of the cause in the court below the plaintiff, for the purpose of dispens- ing , with the necessity of sending for a witness to prove that he admitted the debt to be due on the 20th of December, 1852, expressly admitted that he owed the defendant the debt claimed; that the same was a just debt, and had never been paid, and was still unpaid for anything he knew; but that he supposed it had been handed to his assignee, he having several years before made an assignment in insolvency. He also testified, on cross-examination, " I say now that the defendant's account was a just one, and I do not claim I have ever paid it. It is now due, for anything I know." The court held that this did not remove the statute bar. " It is true," said Sanfoei), J., "that ordinarily an acknowl- edgment that a debt claimed was once due, and that it has never been paid, fairly im- plies a new promise made at the time of such acknowledgment to pay such debt. But if at the time of making such ac- knowledgment the party insists upon the protection of the statute, and thus in effect declares that he will not pay the debt, notwithstanding its justice, no such impli- cation arises and no promise can be found. In such a case the issue is, whether the party promised to pay the debt or not. That he did may be inferred and found from his mere acknowledgment of the existence and justice of the debt, because of the presumption that every man is wil- ling to pay his honest debts. But no such inference or presumption can arise in the face of the debtor's declaration accom- panying his acknowledgment, that not- withstanding the justice of the debt he will not pay it." There are a class of cases where an admiaaion by the debtor in his testimony in the case, or pleadings, or affi- davits filed therein, that the debt is due and unpaid, have been held suflicient to remove the statute bar. In Eucker v. Hannay, 4 East, 604, in an affidavit for leave to plead the statute filed by the de- fendant, a statement that "since the bill of exchange (on which the action was brought) became due no demand for pay- ment had been made on him," was held a sufficient acknowledgment to be left to the jury to find a promise from. There are also a class of cases in which it has been held that an admission of a debt in an answer to abiU in equity is sufficient. Brigham v. Hutchins, 27 Vt. 669. But, whatever may formerly have been the rule, such a doctrine is inconsistent with the present theory and policy of the law in this regard, and cannot be sustained. The jury, in order to find a promise to pay, must find that by what the debtor said and did he intended to pay the debt, and if the admission is contained in an affi- davit, plea, or answer, for a particular pur- pose, without an intention of charging him- self with liability for the debt, no promise can be found therefrom. Deyo v. Jones, 19 "Wend. (N. Y.) 491. An admission by a defendant that the debt was once due, but at the same time claiming that it has been paid in a certain way, — as by his wife's services, — is not sufficient to take the debt out of the statute, even though it is proved that the debt has not been paid in the manner stated. Marshall v. Dai- liber, 5 Conn. 480 ; Carroll o. Ridgway, 8 Md. 328; Mitchell v. Sellman, 5 id. 376; Brackett v. Mountfort, 12 Me. 72. Where the defendant said that he was not holden to pay anything, that the contract could never be enforced in law, and that he would never pay anything, as it was an unjust debt, it was held that a promise could not be inferred from such decla- rations. Laurence v. Hopkins, 13 Johns. (N. Y.) 288. So where A., who had a claim for slave hire againat B., which was barred by the statute, said to B. that the matter of the slave's hire must be fixed up, and B. assented, and asked if no other notes than his own would do, and A. an- §73.] ACKNOWLEDGMENTS. 225 be regarded as a sufficient foundation for an implied promise.^ Mere expressions of regret at not having paid a debt barred by the statute swered, "Yes, if they are good," it was held that B.'s question did not take the claim out of the operation of the statute, by a fair construction of the language, and that B. was entitled to such a construction. Taylor v. Stedman, 11 Ired. (N. C.) L. 447. So where i defendant, on being ar- rested, said he owed the plaintiff money, and he intended to pay it, but would keep it as long as he could, on account of the plaintiff's ungentlemanly conduct, it was held not sufficient to take the case out of the statute of limitations. Fries v. Bois- selet, 9 S. & E. (Pa.) 128 ; Hudson v. Carey, 11 id. 10. The plaintiff, holding a note against the defendant, caused a suit to be commenced upon it, about a year and a ha^f after its date. The defendant told the sheriff who came to serve the writ, that if he would not arrest him then, he would go to work at his trade, and would pay the debt as fast as he could. Upon a plea of the statute of limitations, it was held that the defendant's language was too uncertain and indefinite to constitute a conditional promise to pay when he should be able, but ' that the promise to pay was absolute. Butterfield v. Jacobs, 15 N. H, l(tO. In another case the maker of a note, on being called upon for payment, said that he had not the money, but would pay iihe note as soon as he could ; and it was held that these words were too un- certain and indefinite to constitute a con- ditional promise to pay when he sliould be able, but that the promise to pay was absolute. First Congi-egational Soc. in Lyme v. Miller, 15 N. H. 530, In a later casCj a request being made to a defendant to pay a note, as he had agreed to do, he answered, that folks did not always ,do as they agreed. Held, that this was not evi- dence of "■ new promise suflioient to (take the note out of the operation of the stat- ute of limitations. Douglas v. Elkins, 28 N. H. 26. An account being rpad to the defendant, he said that he "supposed it was right, and was willing to settle and giTO his note ; but he thought the plaintiff had not given him all the credit to which he was entitled." Held, that these expres- sions did not amount to a new promise. Mills V. Taber, 5 Jones (N. C.) L. 412; and the same was also held where a defendant,, in an affidavit for a continuance, stated "that the action was founded on his guar- anty, and by the absent witness he ex- pected to proye such laches on the part of the plaintiff as to discharge him from his engagement," Bank of Newbern i>. Sneed, 3 Hawks(N,C.), 500; and also where a debtor admitted a debt, but said "that it was not in his power to pay it at that time ; but he hoped to see the plaintiff, aind to do some- thing about it," Hancock v. Bliss, 7 "Wend. (N, Y.) 267 ; and also where the proof was, that the defendant said the demand ought to have been paid before, and that he would pay it as soon as he^ conveniently could, Cocks v. "Weeks, 7 Hill (N. Y.), 45. "Where, upon the trans- fer of a note, an indorsed credit was over- looked, so that the indorsee paid the full amount called for in the face of the paper,, and afterwards, on being appUed to ani the mistake pointed out, the indorser said. he was willing to. do what an honest man, ought to do, and paid back the amount of the credit thus overlooked, — held, that this was no promise, express or iniplied, ta^ pay, nor was it a distinct acknowledgment, of a subsisting debt, so as to repel the stat^- ute of limitations. Gilmer v. McMurray,, 7 Jones (N. C. ) L. 479. In a North Caro- lina case, where the plaintiff, to rebut the- plea of the statute, proved that the defend- ant's testator in his last sickness sent for him, and was anxious to settle an account, between them, and, not succeeding, made entries of credits to which he was entitled,, but made no admission of a balance due: the plaintiff, it was "held that tlte evi- dence should be left to the jury, with instructions to find for the defendant, un- less they thought that the testator wished the aceouBt to be settled after his death.. Ballenger v. Barnes, 3 Dev. (N. C. ) L. 460. A. gave B, ah order on C. for $70, > Wilcox V. AVilliams, 5 Nev. £0 VOL. I. — 15 226 STATUTES OP LIMITATIOK. [chap. vir. cannot be said to amount to a waiver of the protection of the statute. The debtor must go farther, and say that which evinces at least a wil- lingness to paj' it. So where a debtor intimates a willingness to pay a debt in specific property, but the creditor declines to accept it, such offer does not amount to a sufficient acknowledgment of the debt to take it out of the statute ; ^ and the same is true as to au offer to pa}- a less sum than is due, in full satisfaction of the debt, and in such a case the statute bar is not removed even to the extent of the sum offered ; ^ although where the maker of a note which is barred by the statute the amount of a medical bill ; B. presented the order to C, who said "he thought the bill was high ; that he had not the money to pay it at that time, but would see A. himself and settle." In a suit by A. against C. to recover the amount of his bill, it was held that this was not sufficient to take the case out of the statute of Mis- sissippi, which provides that " no promise shall revive any cause of action unless the same be in writing and signed by the party to be charged thereby, or unless it be proved that the very claim sued on was presenteil, and acknowledged to be due and unpaid." Thornton v. Crisp, 22 Miss. 52. A debtor expressed to a witness a desire to pay certain bills when he should be able; but the witness did not remember that he then had the bills with him. Held, that this was not sufficient to take the claims out of the statute, if previously ibarred. Adams v. Torrey, 26 Miss. 499. A debtor, to whom application for pay- ment was made, said it was impossible for bim to pay, but offered to mortgage certain real estate to pay the debt, and to pay the interest every ninety days, which offer the creditor did not accept. Held, that this did not take the case out of the statute of limitations. Exeter Bank v. Sullivan, 6 K. H. 124. Upon the presentment of a note to one of the two makers of it, he said that it was as he expected, and that the amount of an indorsement upon it, which had been made by the other maker within six years, was correct. Upon being asked how he expected to get clear of paying it, he said that he supposed there must be a formal demand before the suit could be maintained. Held, that this did not take the case out of the statute. Kelley v. Sanborn, 9 N. H. 46. And generally it is row the invariable rule that no acknowledgment is sufficient to remove the bar of the statute, unless it is of such a character that the law will im- ply a new promise therefrom. Moore i>. Stevens, 33 Vt. 308 ; Jordan v. Hubbard, 26 Ala. 433 ; Brailsford ■«. James, 3 Strobh. (S. C.) 171; SmithiJ. Talbot, 11 Ark. 666; Cooke V. Ash, Eiley (S. C), 246 ; Beck v. Beck, 25 Penn. St. 278 ; Kensington Bank V. Patton, 14 id. 479 ; Patton ■». Jtfagrath, 1 McMull. (S. C.) 212 ; Bates v. Bates, 33 Ala. 102 ; Ten Eyck v. "Wing, 1 Mich. 40 ; Steele r. Jennings, 1 McMull. (S. C.) 297 ; Tazewell v. Whittle, 13 Gratt. (Va.) 329 ; Pray v. Garcelon, 17 Me. 145 ; Mil- ler ■». Lancaster, 14 id. 300; Marseilles ■».' Kenton, 17 Penn. St. 238 ; "Walker v. "Walton, 18 Ga. 119 ; Loftin v. Aldridge, 3 Jones (N. C.) L. 328; McDowell'!;. Goldsmith, 24 Md. 214 ;'Sherrod v. Ben- nett, 8 Ired. (N.- C.) L. 309 ; "Wolfe v. Fleming, 1 id. 290 ; Phelps v. Stewart, 12 Vt. 256 ; Bailey v. Crane, 21 Pick. (Mass.) 323 ; Westbrook v. Beverley, 19 Miss. 419 ; Fortune v. Hays, 15 Rich. (S. C.) Eq. 112 ; Lombard v. Pe*se, 14 Me. 349 ; Wolfensberger v. Young, 27 Penn. St. 278 ; McBride v. Gaj% Busb. (N. C.) L. 420 ; Richardson v. Thomas, 13 Gray (Mass.), 381 ; Crowder v. Nichol, 9 Yerg. (Tenh. ) 453 ; Barman v. Clai- borne, 1 La. An. 342 ; Miflin v. Stalker, 4 Kan. 283. And it must be made by a person competent to contract, or it has no validity, as the law will not imply a prom- ise from an acknowledgment, however strong may be its terms, where the party making would not be bmmd by an express promise. Hannum' s Appeal, 9 Penn. St. 471. 1 Warren v. Perry, 5 Bush (Ky.), 447. " Morris V. Hazelhurst, 30 Md. 362; Phelps V. Stewart, 12 Vt. 256. See Bowker v HRrris, 30 id. 424 ; Cross v. Conner, 14 id. 394. § To.] ACKNOWLEDGMENTS. 227 offers to pay the principal, but refuses to pay the interest, it has been held that the statute bar is removed as to the principal, but not as to the interest ; ' and, under the rule now adopted as to conditional acknowl- edgments, it is questionable whether the statute is removed as to anj' part of the debt, unless the creditor signifies his acceptance of the offer, when made.^ Sec. 74. Effect of Acknowledgment. — An acknowledgment or new promise only operates to keep the debt on foot for six years from the time when the acknowledgment or promise was made. After the lapse of that period it has no effect against the statute.^ Sec. 75. Offer to pay in Specific Property. — A question maj' arise as to the effect of a promise to pay a debt barred by the statute in specific articles, as, " If j'ou will take your pay in wheat, I will pay you," or, " If you will take j-our pay in work, I will pay you," &c. Now, upon the theory upon which the law relating to acknowledgments and promises rests, the creditor can require no more than the debtor agrees to do ; and there can be no question but that, in order to save his debt from the operation of the statute, he takes the burden of showing that he not only accepted the offer, but also that he was ready to accept the pay in the mode named by the debtor. To this extent the courts in New York have gone ; ^ but it seems to us that, if no time is fixed upon within which such payment is to be made, the creditor must go farther, and show that he called upon the debtor for the specific property, or to perform the labor, and that he refused to do so, unreasonably, before he can enforce his claim against him for the amount of his claim in money. Such would seem to be the legitimate effect of the new promise. A part payment in property made upon a debt barred by the statute operates as an acknowledgment of the entire debt, in the absence of any restrictive words. Thus, in an English case,5 the defendant was sued for the price of hay sold to the wife 1 Graham v. Keys, 29 Penn. St. 189; accept, it was held that this did not take McDonald v. Gray, 29 Tex. 80; Collyer v. the case out of the statute. Exeter Bank WiUcock, 4 Bing. 315. '"• Sullivan, 6 N. H. 124. So where the 2 In Allcock V. Ewan, 2 Hill (S. 0.) maker of a note authorized an agent to 326, the rule was accurately stated thus: offer thirty doUars for the note, and the "If an offer is made differing from the offer was not accepted, it was held not to terms of the original contract, it must he amount to a promise sufficient to take the accepted hy the other party in order to case out of the statute of limitations; and revive the original debt." An admission the fact that the maker said that he owed as to part of a debt has been held good as the debt, but was not then able to pay it, to such part Oliver v. Gray, 1 H. c& G. but that he was determined to pay it, was (Md.) 204; Gray v. Lawridge, 2 Bibb (Ky.), held not to be evidence of an unconditional 284. But where a debtor, to whom appli- promise to pay. Atwood v. Cobum, 4 cation for payment was made, said it was N. H. 315. impossible for him to pay, but offered to » Munson v. Rice, 18 Vt. 53. mortgage certain real estate to pay the « Bush v. Barnard, 8 Johns. (N. Y.) debt, and to pay the interest every ninety 407. which offer the creditor did not » Hooper i). Stevens, 4 Ad. & El. 71. 228 STATUTES OF LIMITATION. [CHAP. VIL before marriage, and he set up the statute of limitations. On the trial before Lord Denman, C. J., the plaintiff, to take the case out of the statute, proved that, after the deliver}' of the hay, and within six years of the commencement of this action, the wife, who was then single, and kept a public-house, said to the plaintiff, "Mr. Hooper, you must make use of some spirit, I know ; why not have it of me ? As long as I owe you money for hay, if it is ever so little, it will be a wa}- to lessen the debt." The plaintiff said he would take a gallon of gin at 12s., and a jar filled with gin was sent to him. It was contended that this delivery of goods by the wife was equivalent to a part payment, and barred the statute. On the other hand, it was urged that the deliver}- could not operate as a payment, inasmuch as the defendants, if now suing for the price of the spirits, could oulj- declare as for goods, and not for a liquidated sum of money. The court held, upon the authority of a previous case in the same court,^ that the delivery of the goods, under these circumstances, operated to remove the statute bar as to the residue of the debt, as it was clearly an acknowledgment of the debt from which a promise to pay the balance thereqf could be implied. Sec. 76, Promise not to plead i3ie Statute. — While a promise not to plead the statute, whether made before or after the debt is barred, does not amount to an acknowledgment thereof or a promise to pay it, j'et, if made l:)efore the debt is barred, and in consideration of forbearance to sue, and the creditor does forbear to sue upon tl>e faith of the promise, it is binding upon the debtor, and at least has the effect to keep the debt on foot until the statutory' period, dating from such promise, expires,^ either by way of estoppel,' or as a conditional promise to pay the debt in case the plaintiff proves it.' But after a debt is actually barred by the statute, a mere naked promise not to plead the statute has no validity-, as it is a mere nudum pactum. In order to be operative it must be predicated on a new consideration.^ An admission as 1 Hart V. Kash, 2 C. M. & K. 337. ing his right of action, if it should he 2 Paddock v. Colby, 18 Vt. 485 ; Smith wanted." Patteson, J., said : "The de- V. Leper, 10 Ired. (N. C.) 86; Cooper v. fendant admits something to be due, though Parkei-, 25 Vt. 502 ; Eandon v. Toby, 11 he does not agree with the plaintiff as to How. (U. S. ) 493 ; Brown v. State Bank, the amount ; but he says, ' I will not avail 5 Ark. 134. myself of the statute, and will put it out 8 Smith's Leading Cases, Am. note, 318; of my power to do so." That, if taken Allen V. "Webster, 15 Wend. (N. Y.) 289 ; alone, makes a promise. The expressions Utica Ins. Co. v. Bloodgood, 4 id. 652. which follow do not qualify that promise." In Gardner v. M'Mahon, 3 Q. B. 561, re- * Burton u Stevens, 24 Vt. 131. fOTed to in the text. Lord Denma-n said : 6 stockett v. Sasser, 8 Md. 374 ; Steele "When the debtor says before the six «. Jennings, 1 McMuU. (S. C.) 297; Brown years have passed, which seems to me an v. Edes, 37 Me. 818. In Wan-en v. Walk- important circumstance, 'I will waive the er, 23 Me. 453, the defendant in writing statute,' it may well be supposed that the agreed to "waive all defence which a creditor on his part has forborne to sue, party might otherwise make under the relying upon this undertaking as preserv- statute of limitations," and it was held § ' '■] ACKNOWLEBGMENTS. 229 follows, " T do not wish to avail myself of the statute of limitations," was held msufflcient.1 Usually, perhaps, where there is a promise not to plead the statute, there wUl be found in the context something further which will amount to an acknowledgment of indebtedness from which a promise to pay may be implied ; but in the absence of such context It seems on the authority of the eases cited, and upon a strict apphcation of the present theory as to the principles of the doctrine of acknowledgment, that a promise not to take advantage of the statute will have no efficacy in itself as an acknowledgment of a debt. Such a promise, however, where it is supported by a consideration, and is not a mere nudum pactum, may amount to an agreement, for the breach of which damages may be recovered." And it rnust be borne in mind that if the promise not to take advantage of the statute be made within six years, and while the debt is still recoverable, the forbearance to sue will be itself a sufficient consideration. It may, however, be argued that any such promise must be disregarded as frustrating the policy of the statutes, and as being contrary to the rule that prescrip- tion cannot be renounced in advance. It might, indeed, at first sight seem that a promise not to take advantage of the statute amounted practically to a promise to pay the debt in question ; and it seems to have been so considered in an Eno-- lish case,' where the promise was, " As you have mentioned the limita- tions act, I answer at once that I am ready to put it out of my power to take advantage of that act, and will immediately give you my note for whatever amount is due you. To pay you now, or within the year, I am utterly unable." It is obvious, however, that a promise not to plead the statute in an action is not inconsistent with an intention to defend the action upon its merits ; and a promise in the following terms, " I hereby debar myself of all future plea of the statute," was held not sufficient.* Sec. 77. Conditional Acknowledgment. — If a debtor annexes any qualification or condition to his acknowledgment or promise, it will not be operative to remove the statutory bar without proof of its perform- ance ; * and a contrary rule would nullify the principle upon which the not sufficient to prevent him from setting Gardner v. M'Mahori, 3 Q. B. 561. up the statute; and a similar doetiine was * Waters ». Earl of Thanet, 2 Q. B. held in the case of Brown v. Edes, ante. 757. ^ Eackham v. Marriott, 2 H. & N. 196. * In the case of Wetzell v. Bussard, 11 2 East India Co. v. Paul, 7 M. P. C. C. Wheat. (U. S.) 309, Maeshall, C. J., in 85. In this case it is distinctly laid down delivering the opinion of the court, said : by Lord Campbell that there might be " We think, upon the principles expressed an agreement that, in consideration of an by the court in the case of Clementson v. incjuiiy into the merits of a disputed claim, Williams, 8 Crauch (U. S. C. C), 72, that an no advantage should be taken of the stat- acknowledgment which will revive the orig- iite of limitations in respect of time em- inal cause of action must be unqualified and ■ployed in the inquiry, and that an action unconditional, it must show positively that might be brought for breach of such agree- the debt is due in whole or in part. If it ment. be connected with circumstances which in 230 STATUTES OF LIMITATION. [chap, vn.' doctrine relating to acknowledgments rests. It is not the acknowledg- ment of itself which revives the debt, but the promise which the law any maiyier affect the claim, or if it be conditional, it may amount to a new aa- S'ompsit, for which tlie old debt is a suffi- cient consideration ; or if it be construed to reyive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown. In the case at bar, the defend- ant said to one witness that if the plaintiff had come forward and settled certain claims the defendant had against him, he would have given him his powder ; and to an- other he said, ' he should be ready to de- liver the powder whenever the plaintiff settled a snit which Doctor Ewell had brought against defendant in the court of Alexandria, on account of » patent-right and machine sold to him by the plaintiff.' These declarations do not amount to an unqualified and unconditional acknowledg- ment that the original debt was justly de- mandable. They assert a counter-claim on the part of the defendant, which he was determined to oppose to that of the plain- tiff. He did not mean to give validity to the plaintiff's claim, but on condition that his own should be satisfied. These decla- rations, therefore, cannot be construed into a revival of the original cause of action, unless that be done on which the revival was made to depend. It may be considered as a new promise, for which the old debt * is a sufficient consideration, and the plain- tiff ought to prove a performance, or a readiness to perform, the condition on which the promise was made." Bell v. Morrison, 1 Pet. (U. S.) 251, where the case of Wetzell u. Bussard is cited, and the doctrine there settled, declared by Story, J., in delivering the opinion of the court, to be "the only exposition of the statute which is consistent with its true object and import." In Seaward v. Lord, 1 lie. 163, where the maker of a promis- sory note denied his signature, declaring the note to be a forgery, but said that if it could be proved that he signed the note he would pay it, and it was proved at the trial that he did sign it, it was held suflS- cient.to take the case out of the statute of limitations. So in Stanton v. Stanton, 1 N. H. 425, the defendant was sued upon a note of hand, and pleaded the statute of limitations. It was proved that he made the note, and that the same had been pre- sented to him within six years, when he said, " that he did not recollect giving the note ; but if he did, he would pay it, its being outlawed should make no odds;" this was held sufficient to take the case out of the statute. In Tanner v. Smart, 6 B. & C. 603, in assumpsit brought to re- cover a sum of money, the defendant pleaded the statute of limitations, and upon that issue was joined. At the trial the plaintiff proved the following acknowl- edgment by the defendant within six years : "I cannot pay the" debt at present, but I will pay it as soon as I can." It was held that this was not sufficient to entitle the plaintiff to a verdict, no proof being given of the defendant's ability to pay. In Scales V. Jacobs, 3 Bing. 638, to a plea of the statute of limitations the plaintiff re- plied a promise within six years, and proved that three years after the original cause of action accrued, and within six years of the commencement of the action, the defendant, being called on for payment of -the plaintiff's demand, said, "it was not in his power to pay, but as soon as it was he would." Held, that the plaintiff must also prove the defendant's ability to pay. In Ayton o. Bolts, 4 Bing. 105, in. an action on an attorney's bill to which the defendant pleaded the statute of limi- tations, the plaintiff proved that the de- fendant, having been applied to for payment within six years before the commencement of the suit, said, "he should be happy to pay the debt if he could," and added, that if the plaintiff could recover for him a debt due to him from one Gumey, the plaintiff might therewith satisfy his own debt. Held, that the plaintiff must show the defendant's ability to pay. But in the case of Thompson v. Osborne, 2 Stark. 98, it was held by Lord Ellenborough, at nisi prills (in 1817), that a promise by a defendant to pay a debt by instalments when he is able, is sufficient to take the case out of the statute of limitations, with- out proof of time being given, or of the ability of the party. Upon the general §77.] ACKNOWLEDGMENTS. 281 raises from the ackno-wledgment ; and if that is conditional, it follows, as a matter of course, that the debt can only be revived subject to such conditions. The debtor, after the statute has run, is master of the situation. If the creditor expects to recover any portion of the debt, he must take it upon such terms as the debtor sees fit to dictate. Pakke, B., in an English case,^ gave expression to the rule as follows : " An unconditional acknowledgment," said he, " is good to prove a prom- ise, because you would infer from it that the party meant to pay on re- quest. But if he annexes any qualification or condition, that is not a suffi- cient acknowledgment, without proof of the performance of it." ^ Thus, question, and to the effect that the con- dition must be performed in order to give vitality to the acknowledgment or promise, see Pearson v. Harper, 11 La. An. 184 ; Bates V. Bates, 33 Ala. 102 ; Shaw v. Newell, 1 E. I. 488 ; Farmers' Bank o. Clarke, 4 Leigh (Va.), 603; MuUett v. Shrumph, 27 111. 107 ; Mitchell v. Clay, 8 Tex. 443. In Sweet v. Franklin, 7 R. I. 355, in a suit by an administrator against a son of the deceased on a note that had been given by him to his father, but upon which the' statute had run, evidence was admitted showing that he had promised to pay the note if a settlement of his father's estate should be made upon his mother without administration, in order to save expenses. The condition was not per- formed, and the court held that the ac- knowledgment was inoperative. In Luna V. Edmiston, 5 Sneed (Tenn.), 151, the defendant told the plaintiff, to whom he owed a debt barred by the statute, " If you will buy C.'s land, I wiU pay him what I owe you, which will be enough to pay the first instalment." It was held not suffi- cient, unless the condition was complied with and the land purchased. ' Hart u. Prendergast, 14 M. & "W. 741. ^ In Buckmaster v. Russell, 10 C. B. N. s. 749, the defendant had written as follows: "I have received a letter from Messrs. P. & L., solicitors, requesting me to pay yoii an account of £40 9s. 6d. I have no wish to have anything to do with the lawyers; much less do I wish to deny a just debt. I cannot, however, get rid of the notion that my account with you was settled in 1851; but as you declare it was not settled, I am willing to pay you £10 per annum until it is liquidated. Should the proposal meet with your approbation we can make arrangements accordingly." This was held insufficient, Willes, J., observing that it did not amount to a prom- ise until the terms the defendant proposed wfere assented to. See also Cowley v. Fur- nell, 12 C. B. 291 ; Feam v. Lewis, 6 Bing. 349. However, in Collis v. Stack, 1 H. & N. 605,. an acknowledgment in the terms following was held good without any proof of assent : "I shall repeat my assurance to you of the certainty of your being repaid your generous loan. Let mat- ters remain as they are for a short time longer and all wUl be right. The works I have been appointed to, but they are not yet worked with the full complement of labor; this term will decide the matter." So where a defendant, called upon by a creditor, who held two promissory notes against him more than six years overdue, for a statement of his affairs, made out an account in which the notes were inserted as a debt to which he was liable, it was held to be a sufficient acknowledgment by the debtor. Holmes v. Mackerell, 3 C. B. N. s. 789. If the acknowledgment of the debt is coupled with terms or conditions of any sort, no recovery can be had without proof of their fulfilment, Cocks v. Weeks, 7 Hill (N. Y. ), 45 ; The Farmers' Bank V. Clark, 4 Leigh (Va.), 603 ; Shaw v. Newell, 1 E. I. 488; because as the debtor may admit the debt, and yet refuse to pay it, without giving any reason for his refusal, Careth v. Paige, 22 Vt. 179, he must nec- essarily be entitled to assume an inter- mediate position, and accord a portion of that which he might withhold altogether. Thus, an offer to pay a fixed sum in satis- faction of a larger one, or of an unliqui- 232 STATUTES OF LIMITATION. [chap, vir in a recent ease,^ an action was brought upon a note upon which the stat- ute had run. The plaintiff claimed that the note was taken out of the operation of the statute by a promise in writing to pay the same, which was contained in a letter written to plaintiff by defendant in answer to a demand for pa^'ment. The alleged promise was as follows : — " Dear Sir, — I received a notice from you Saturday stating that a de- mand against me had been left in yom- office. I presume it is Mr. Ward's claim. I would say now, as I did before, and also told Mr. Ward, that when I was able I should most certainly settle the demand. I am not now, nor have I been, in a condition to settle it. It will be a great satisfaction to myself when I find my business will permit me to liquidate the demand, for being in debt with me is not at all agreeable, and to be free from such embarrassments is equally pleasant." The Superior Court ruled that defendant was liable upon the note ; but this ruling was reversed upon exceptions, the court holding that, in order to make the acknowledgment operative as a promise to revive the debt, the defendant's ability to pay must be shown. The same doc- trine has been held in numerous cases. Thus, where the debtor said, "As soon as I have the money I will remit ;"^ or, "As soon as the da,ted account, will not remove the bar of the statute, even as It regards the sum actually offered, unless the offer he ac- cepted when it is made, or within a rea- sonable time afterwards; hecause the ac- knowledgment which it implies cannot he separated from the condition with which it is accompanied. Bell v. Morrison, 1 Pet. (U. S.) 351 ;' Farley v. Kustenbader, 3 Penn. St. 418 ; M'Glensey v. Fleming, 4 D. & B. (N. C.) 129; Wolf v. Fleming, 1 Ired. (N. C.) 290; Smith v. Eastman, 3 Gush. (Mass.) 558; Mumfoid v. Free- man, 8 Met. (Mass. ) 432. In like manner, if a promise to pay a debt barred by the statute, in goods, or the notes or bills of a stranger, has any legal validity which may be doubted, Earle v. Oliver, 1 Exoh. 71; Reeves v. Hearne, 1 M. & W. 323, it cannot he binding without proof that the creditor assented to it at the time, and that the debtor subsequently refused to jmrform it, Bush v. Brainerd, 8 Johns. (Jf. Y.) 467; WoK v. Fleming, 1 Ired. (N". C.) 290 ; Taylor v. Stedman, 11 id. 447; M'Lellan v. Albee, 17 Me. 184. But unless the qualification or condition really restricts or limits the meaning of the ac- knowledgment, it will be wholly imma- terial, and may be disregard«d by the creditor. Whitney v. Bigelow, 4 Pick. (Mass.) 110 ; Watkins v. Stevens, 4 Barb. 168. And it has even been held that a promise to go to work and pay when able requires no proof of ability. The First Congregational Society v. Miller, 15 N. H. 820 ; Butterfield u Jacobs, id. 52; Cum- mings V. Gassett, 19 Vt. 308. But these cases are opposed by the general course of decision, under which no recovery can be had on a promise to pay a debt barred by the statute, -tvhen able, without proof that the means of the debtor are suph as to enable him to make the payment. Tompkins II. Brown, 1 Den. (N. Y.) 247; Lafarge ii. Jayne, 9 Penn. St. 410 ; Sher- man V. Jacobs, 1 Barb. (IS. Y.) 254. It would appear that the creditor will be entitled to recover on proof of the fulfil- ment of the condition, however essentially it may qualify the acknowledgment, and that a promise to pay the debt, if proved, may be binding, though coupled with a denial that it is due, if sufllcient proof of its existence can be brought to satisfy the jury impanelled to try the issue. Dean V. Pitts, 10 Johns. (N. Y.) 35; Paddock V. Colby, 18 Vt. 485 ; Hill ». Kendall, 25 id. 528. » Mattocks V. Chadwiok, 71 Me. 313. " Sedgewick v. Girding, 55 Ga. 264. In 9/ late ease in Connecticut, Norton tt §T7.] ACKNOWLEDGMENTS. 233 money can be realized from the assets it shall be paid ; " * or, "I think I see mj- way clear to pay you the $200 and interest I owe you. I am in hopes another two years will enable me, from my present income, to clear off all pressing debts. Rest assured that not a day of pecuniary freedom will pass over my head without your hearing from me ; " ^ or, " If you will buy C.'s land I will pay him the amount I owe you ; " ' or, " I will paj- as soon as I can ; " * or, " If A. will say I had the timber, I will pay for it ; " or, " Prove it by A. and I will pay for it ; " * or, " I should be happy to paj' it if I could ; " ° or, " 1 will pay you when able," ' or " when of sufficient ability," ' or " when convenient," ° or Shepard, 48 Conii. 98, a debtor whose debt was barred by the statute of limitatious said to his creditor with regard to it, "I will pay it as soon as possible." It was Jield to be a sufficient acknowledgment of the debt to take it out of the statute. "The Connecticut statutes of limitation," said LooMis, J., "do not create an arbi- trary bar >to the recovery of a debt inde- pendent of the will of the debtor. If they did, a new promise would not kvail the creditor unless founded on some new con- sideration, and in such case the action would have to be brought on the new prom- ise. But the courts have always consid- ered them mere statutes of repose, which suspend the remedy, leaving the debt un- cancelled and still bindling inforo consaien- tice. Hence it is well settled that the debt may be revived and the bar to its recovery removed by a new promise, either express or implied. Lord v. Shaler, 3 Conn. 132 ; Bound B. Lathrop, 4 id. 336 ; Austin v. Bostwick, 9 id. 496 ; Belknap v. Gleason, 11 id. 160 ; Phelps v. Williamson, 26 Vt. 230. In general, any language of the debtor to the creditor clearly admitting the debt apd showing an intention to pay it will be considered an implied promise to pay, and will take the case out of the stat- ute. Wooters v. King, 54 111. 343 ; Gailer V. Grennell, 2 Aik. (Vt.) 349; Phelps v. Stewart, 2 Vt. 216. And in this State an acknowledgment that a debt was once jnstly due and has never been paid will ordinarily authorize the inference of a promise to pay it. Sandford v. Clark, 29 Conn. 460." 1 Hanson «. Towle, 19 Kan. 273. * Pierce v. Seymour, 49 Wis. 94. ' Luna V. Edmiston, 5 Sneed (Tenn.), 159. * Tanner v. Smart, 6 B. & C. 602; Tompkius ». Brown, 1 Den. (N. Y.) 247 ; Bidwell V. Rogers, 10 Allen (Mass. ), 438. s Robbins v. Otis, 1 Pick. (Mass.) 368. 6 Ayton V. Bolt, 4 Bing. 105. ' In Tebo v. Robinson, 100 N. Y. 27, it was held that ability to pay, within the meaning of a promise to pay a debt when able, cannot be fairly implied while the debtor, although in possession of property sufficient to pay the debt, is plainly in- solvent, or where payment, if enforced, would strip him of his means of support ; nor is it within the pontemplation of the parties that the debtor will pay out of earnings necessary for the support of him- self or his famUy, or that he will pay to the prejudice of other creditors whose debts are absolute and unconditional. On the other hand, such a promise does not imply simply an ability to pay without embaiTass- ment, or even without crippling the debtor's resources and business. In an action commenced in November, 1881, upon a written promise made by the defendant in October, 1872, to pay |1,000, before that time loaned tohim by the plain- tiff, the moment he was able, the defence was the statute of limitations. It appeared that for some time prior to November, 1875, the defendant had a balance to his credit in bank at all times, sometimes more and sometimes less than plaintiff's claim. Also, that the defendant, from prior to 1873, was a member of the New York Stock Exchange, and that his seat, in 1875, was worth $5,000. Whether he owed any other debts than that to plaintiff did not 8 Jacobs V. Scales, S Bing. 648. » Edmunds v. Dacons, 2 C, & M. 459, 234 STATUTES OF LIMITATION. [CHAP. VII. " as soon as it is in mj- power to do so ; " ^ or, " I should be happy to appear. The plaintiff testified to a conver- sation with the defendant in October, 1876, in which tlie latter stated that he had not seen a time since he borrowed the money when he could pay it, and that the plaintiff could rest assured he would do so as soon as he was able. The court non-suited the plaintiff. Held, error ; that it was a ques- tion of fact for the jury as to when the de- fendant became able to pay. Love V. Hough, 2 Phil. (Penn.) 350 ; In Davies v. Smith, 4 Esp. 36, the de- fendant, on being applied to for payment, said : "I think I am in honor bound to pay the money, and shall do it when I am able." Lord Kenyon, in passing upon the sufficiency of this acknowledgment, said : ' ' That is not sufficient. The plain- tiff should show that the defendant was of sufficient ability to pay when he was sued. I remember a case In which Seiueant Nares was of counsel, which turned upon this point. He contended that every man was regarded in law as able to pay his debts, for solvat per corpus, qui non potest crumend; but the distinction is too fine." In this case the plaintiff then offered to show that since the promise was made the defendant had inherited £8,000 from his grandfather ; but it appearing that what- ever benefit the defendant had derived under the will he was then in debt infi- nitely beyond it, and wag, in fact, in con- sequence of his difficulties, forced to live out of the kingdom, it was held that the acknowledgment did not revive the debt ; and Lord Kenyon ruled that it was a conditional promise only, and that the plaintiff was bound to show that the de- fendant was then of sufficient ability to pay, adding, that it had been so ruled before, by Lord C. J. Eyre. This case was tried July 1, 1801. If, after a debtor has promised to pay " when able " it is shown that subsequent to such promise he had the ability to pay, the statutory bar is removed, although at the time when suit was brought, the ability to pay did not exist. Lange v. Caruthers, 70 Tex. 718. A tort cannot be revived by an ac- knowledgment or promise. Martins v. Lyon, 84 Va. 331 ; Dickens v. Storeman, (Mich.) 41 N. W. 495. In Track :;. Weeks, 81 Me. 825, it was held that an agreement to waive any and all objections to certain amounts on account of the stat- ute and renewing the promise to pay any balance which should be against the debtor, made after the statute had. run, was not sufficient to estop the debtor frdVn setting up the statutory bar when the statutory bar has run. In Manning v. Wheeler, 13 N. H. 486, a question quite simi- lar to that decided in Davies v. Smith, was raised. In that case the defen- dant said that, " if he was able, he should be willing to pay all his debts ; " and it was shown that he subsequently inherited several thousand dollars. The court held that, if the defendant's lan- guage could be regarded as referring to a future ability, it would mean an ability to pay all his debts, and that witliout proof of such ability the action could not 1^ sus- tained. The court held, however, that the debtor's language must be treated as refer- ring to and depending on his ability at the time when it was used, and that the burden of establishing such ability rested upon the plaintiff. See also, upon this point, Wake» ' Haydon v. Williams, 4 M. & P. 811. In Sedgewick v. Gerding, 55 Ga. 261, it appeared that on Dec. 31, 1872, a suit was commenced on an open account contracted in September and October, 1868. To avoid the statute of limitations, and as an independent ground of recov- ery, a letter from the defendant, written May 21, 1868, was relied upon, which was as follows : " Gentlemen, — In reply to your favor of the 22d instant you will please to withdraw your draft of $314.37 upon me, as I cannot pay for the present. As soon as I have the money I shall remit." And the court held that it was too indefi- nite to avoid the statutory bar, or as an independent ground of action. In Betton V. ,Cutts, 11 N. H. 170, the debtor ad- mitted that the claim was just, and said he would pay it if he ever received any- thing on a certain claim, and after his de- cease his administrator received a dividend upon that claim, it was held that the con- dition was fulfilled and the debt revived. §77.] ACKNOWLEDGMENTS. 235 paj- if I could ; " ^ or, " Yon shall have your paj- if I live, and the whal- ing business does not fail ; " ^ or, " I am going to H. in the course of a man v. Sherman, 9 N. Y. 88 ; and hold- ing a doctrine adverse thereto, Sumatt V. Homer, 30 111. 429 ; Cummings v. Gassett, 19 Vt. 308. In a recent case in Connecticut, the court held that where a debtor, on being presented with a claim, says, " I will pay it as soon as possible," it is a sufficient acknowledgment to take the debt out of the statute. The court said : " In First Congregational Society v. Mil- ler, 15 N. H. 520, the defendant's lan- guage was, ' that he had not the money, but would pay as soon as he could,' which was held not to be a conditional promise, be- cause there was no certain event to which the words looked forward, and it was held as a sufficient acknowledgment to take the case out of the statute. In Butterfield V. Jacobs, p. 140 of the same volume, the defendant said ' he would go to work and would pay as fast as he could,' in regard to which the court pronounced a similar opinion. In Cummings v. Gassett, 19 Vt. 308, the promise of the debtor was to pay 'as soon as I can,' and it was held suffi- cient to remove the bar of the statute. In Sluby V. Champlin, 4 Johns. (N. Y.) 461, the defendant, on being arrested by the sheriff, promised to ' settle with the plain- tiff if he would give him time for payment, ' which was held sufficient as an acknowl- edgment. Quoere, Did it not amount to an express promise to pay ? In De Forest v. Hunt, 8 Conn. 180, the plaintiff having written to the defendant calling his atten- tion to the fact that he had previously sent his account reqiiesting payment, the de- fendant replied, ' Yours of the 12th instant came to hand this day, requesting to know what ijrospect I have of paying the de- mands against me. I am extremely sorry to say to you that the prospect, at present, is not very flattering, as it is utterly out of my power to pay anything ; ' which was held an unqualified and unconditional ac- knowledgment that the precise balance stated was at that time justly due the plaintiff. In Brown v. Keach, 24 Conn. 73, the plaintiff's agent wrote to the de- fendant, calling his attention to the fact that he was indebted to the plaintiff by note, and the defendant replied, ' Yours of the 24tli has been received, and in reply I hardly know what to say ; but as you re- quest an answer soon, I will say in return that I can't tell you what I can do at present, but I have been thinking of com- ing to Woonsocket for some time, but will omit it until I hear from you again. I wish you by retmn mail to send me a true copy of all the claims that you hold against me in full dates ; that is, I want it word for word, and indorsements, &c., and state where your mother and sister are now living, and I will see them or write soon.' This was held sufficient to remove the bar. In Blakeman v. Fonda, 41 Conn. 561, the debtor said to his creditor, 'If 3"on will call in two weeks I will pay you some- thing on the debt ; I cannot tell how much ; ' and the words were held an un- qualified recognition of the defendant's liability to pay the whole debt." In Pierce v. Seymour, 52 Wis. 272, the lan- guage was, "I think I see my way clear to pay you the §200 and interest I owe you. I am in hopes another two years will en- able me from my present income to clear off all pressing debt^. Rest assured that not a day of pecuniary freedom will pass over my head without you hearing from me." Held, not sufficient. In Mattocks V. Chadwiek, 71 Me. 313, a promise to settle "when I am able," held not suffi- cient. The Connecticut courts probably give more effect to the statute than those of any other State, and, generally, the doc- trines of that court are entitled to great con- sideration ; but upon this question we must believe that the doctrine stated in the text is not only better sustained by authority, but also by sound reason, than that an- nounced in the first two cases cited from that State, and certainly is sustained by the great majority of the coui-ts in this country, as well as by the uniform course of decision in England. The promise in the second case is conditional, and the con- dition is by no means trivial, but one of importance to the debtor, and, as he has a right to dictate terms to his creditor, the creditor must take his promise subject to such terms as he sees fit to impose. 1 Ayton V. Bolt, 4 Bing. 105. 3 Mumford v. Freeman, 8 Met. (Mass.) 432. 236 STATUTES OP LIMITATION. [CHAP. VU. week, and will help you to £5 if I can,'^ ^ — are all conditional acknowl- edgments which are inoperative, unless it is shown that the condition has been performed, the burden of establishing which is upon the plain- tiff." An offer to pay a debt upon which the statute had run, in " Con- federate money," which was not accepted by the plaintiff, was held insufficient to take the debt out of the statute.* In an English case the defendant had written to one of the plaintiffs as follows : * " My Dear Sir, — The old account between us, which has been standing over so long, has not escaped our memory, and as soon as we can get our affairs arranged we will see yon are paid ; perhaps, in the mean time, you will let j'our clerk send me an account of how it stands." It was claimed bj' the defendant that the letter did not take the case out of the statute, the time limited by which would otherwise have run. It was, however, held, on an appeal by a majority in the Exchequer Chamber, Coleridge, C. J., dissenting, that the promise in the letter was sufficient.^ In another ease, where there was in effect a promise to pay on alternative conditions, forbearance to sue was said to be sufficient evidence of the acceptance of one condition hy the plaintiff." And a promise to pay in a particular manner will not revive the debt generally.' When there was an agreement signed by certain persons to refer accounts between them to arbitration, and the arbitrators were em- powered to ascertain by their award what was due and payable, and to order the same to be paid at such time and in such proportion as the arbitrators should think fit, it was held, on the arbitration proving abor- tive, that the agreement only amounted to a conditional promise to pay the amount found due by arbitration, and that as the condition was un- fulfilled there was no effectual acknowledgment.' As an acknowledgment of a debt simply avoids the statute by the implication it affords of a new promise, an acknowledgment, though otherwise sufficient, if made obviously on some other account, may be held insufficient." Thus, in one case it was so held where the acknowl- edgment consisted in the fact that a surety had written to authorize the 1 Gould V. Shirley, 2 M. & P. 581. ' Siraonton v. Clark, 65 K. C. 525 ; ' Manning v. Wheeler, 13 N. H. 486 ; 6 Am. Rep. 752 ; McCranie v. Mun-ell, Davies v. Smith, ante ; Carroll v. Forayth, 22 La. An. 477. 69 III. 127. In Walker v. Crulkshanks, * Chaseraore v. Turner, L. R. 10 Q. B. 23 La. An. 252, a proposal by an executor 500. See also Smith v. Thorne, 18 Q. B. to pay a note against the estate, "if the 143. holder will throw off the interest," was ^ Sidwell v. Mason, 2 H. & I^. 306; held sufficient to suspend the statute, al- Collis ». Stack, 1 id. 605. though the offer was not accepted. But " Wilby v. Elgee, L. R. 10 C. P. 497,. in McDonal v. Underhill, 10 Bush (Ky.), 501. 684, a similar acknowledgment or offer ' Cawley ». Furnell, 12 C. B. 291. was held sufficient only as to the pirinci- ' Hales v. Stevenson, 9 Jur. N. s. pal, and did not extend to the interest due 300. thereon. * Cripps v. Davis, 12 M. & W. 159. § 78.] ACKNOWLEDGMENTS. 23? creditor to receive a dividend upon his debt from the principal debtor.* Sec. 78. Hope to pay. — Where an acknowledgment has been given, followed by an expression of " hope" that the debtor will satisfj' his debt, it has often been doubted how far that expression has cut down the implied promise." On this point Bramwell, B., said : " It seems to me a mistake has teen made in several cases with respect to the expression of hope in holding that, because along with an uncon- ditional acknowledgment of a debt a man expresses a hope to be able to do that which he is legally obliged to do, such an acknowledg-ment is not sufficient." " In another case * the defendant had written to his creditor as follows : " Your letter has reached me at last, after having been half over Eng- land. It is quite true that I have not sent you any money for years, but I really have none of my own. We just manage to exist on my wife's, or at least what is left of hers. We have hard work to get on, but I will try to pay you a little at a time if j-ou will let me. I am sure that I am anxious to get out of your debt. I will endeavor to send j-ou a little next week." This letter Was held by a majority of the Court of Exchequer, Martin, B., dissenting,* to be a suflScient aeknowledg- ment. In a Wisconsin ease ° the defendant wrote as follows : ^* I think I see my way clear to pay you the $200 and interest I owe you. 1 am in ^ Cockrill V. Sparkes, 1 H. & C. 699. such an acknowledgment ; and a condi- 2 Hart V. Prendergast, 14 M. & W. 741; tional promise to pay when able -will pre- Kackham v. Marriott, 2 H. & N. 196. In vent an absolute promise from being Hancock u. Bliss, 7 "Wend. (N. Y. ) 267, implied.' I think the proper mode of the debtor admitted the debt, but said deciding questions of this nature is, not " it was not in his power to pay it at the lay discussing other documents, but by time, but he hoped to see the plaintiff and giving a fair and candid construction to do something about it; " and it was held the one which is before us, and seeing not a sufficient acknowledgment to raise whether, so construed, it contains a prom- a promise by implication to take the debt ise to pay. Now, if the letter stopped at out of the statute. ttie words 'to get on,' it is imposmble to ' Sid well V. Mason, 2 H. & N. SIO. tey that there would be any promise or * Lee V. Wilmot, L. E. 1 Ex. 364. acknowledgment ; and when the debtor * He said : " In my opinion this letter further says, 'but I will try to pay you a is not a sufficient acknowledgment. I little at a time if you will let me,' this consider the law to be correctly laid down means (the letter being written before the in 2 Wms. Saunders, 64 h, note c, in the debt was barred), if you will not sue me I note to Hodsden v. Harridge, that ' an will do my best to pay you what I can. acknowledgment operates only as evidence The fair and reasonable construction is, I of a promise to pay; and accordingly tliat thinlt, the debtor engages that he will upon a general acknowledgment, where do his best to endeavor to pay, that he nothing is said to prevent it, a general will pay as he is able; and this excludes promise to pay may, and ought to be, im- the implication of the absolute promi.se plied; but that where the party guards his sued upon';" and we submit that this acknowledgment, an implication will not opinion is in harmony with the En^ish arise. Thus, a refusal to pay will prevent cases previously cited. the implication of a promise arising from ' Pierce v. Seymour, 49 Wis. 94. 238 STATtTTES OP LIMITATION. [CHAP. VIT. hopes another two years will enable me from my present income to clear oflf all pressing debts. Rest assured that not a daj- of pecuniary freedom will pass over my head without you hearing from me ; " and it was held insufficient to talce the debt out of the statute. Under this head maj' properly be embraced offers of compromise. If a debtor in whose favor the statute has run offers to compromise the claim hy pajing a smaller sum than is due, or to paj- it in a certain kind of property, the offer does not operate as an acknowledgment of the debt, so as to remove the statutory bar, even to the extent of the sum offered, unless the offer is accepted when made; and if accepted, only relieves the operation of the statute to the extent of the offer.^ Tills rule was well illustrated in a Connecticut case." lu that case, after the statute had run the debtor was reminded of the note by the plaintiff, and of the fact that it had not been paid, and he said, " I will give you a ton of coal for it," which offer was not accepted, and it was held that it did not relieve the debt from the operation of the statute. " The offer of the defendant," said Seymour, J., " to give a ton of coal for the note was not accepted. It was a mere offer of compromise, and clearh" no acknowledgment to take the case out of the statute." In a Missouri case" the defendant wrote the plaintiff that he had a certain sura of money, " and I propose giving it all up to my creditors, — that is, the creditors of Lea & Rubej-, — to be equally distributed between them, provided they will entirely release me from further obligation." The plaintiff did not accept the offer, and it was held that it did not take the debt out of the statute. " Instead of an admission," said Wagner, J., " it was an offer of compromise, and a promise to paj- part for the whole, and as the offer was not accepted the liability did not accrue." In a North Carolina case ' the defendant offered to pay the note in suit in Confederate notes or in bank-bills, but the plaintiff refused either, and demanded gold. The court held that this was not a sufBcient acknowledgment to take the debt out of the statute. " The act of the defendant's testator," said Dick, J., " was a mere offer to pay in the currency then in circulation, and no intention was in anj- way shown of assuming or renewing the obligation. We think tlie proper inference to be drawn from the evidence is, that the defendant's testator was willing to pay the debt in the currency of the country, 1 Mumford v. Freeman, 8 Met. (Mass.) L. 129; Ash «. Hayman, 2 Cranoh (U. S. 432; Bell t). Morrison, 1 Pet. (U. S.)361; C.C.),452; Bank of Columbia w. Sweeney , Smith i>. Eastman, 3 Gush. (Mass.) 355; 3 id. 298; Creiise v. Defiganeure, 10 Bosw. Pearson u. Harper, 11 La. An. 184; Bates (K. Y.) 122; Pool v. Kolfe, 23 Ala. 701; V. Bates, 33 Ala. 102; Lucas v. Thorington. Morehead v. Gallinger, 9 Iowa, 519; Hioks 5 id. 504; Pearson v. Darrington, '^3 id. v. Thomas, Dudley (Qa.), 218. 227 ; Parsons v. Northern, &c., Iron Co., » 2 Currier v. I.ockwnod, 40 Conn. 849. 3S 111. 430; Slack v. Norwich, 32 Vt. 818; » Chambers v. Ruby, 47 JIo. 99, 4 Am, Neal V. Abbott, 2 Cranch (U. S. C. C), Rep. 318. 198; Glensey V. Fleming, 4 D. & B. (N. C.) * Simonton v. Clark, 65 N. C. 625. § "^8.] ACKNOWLEDGMENTS. 239 which was then abundant ; and as that was refused, his purpose was to rely upon the statute of limitations." In a Massachusetts case ^ the maker of a note agreed with the holder to pay him a certain proportion of the amount due in full discharge of the note, and afterwards made and signed a note for the amount so promised, and offered it to the holder in payment of the first note. The holder refused to receive it, and it was held that that was not such an acknowledgment as took the first note out of the statute. In a New Hampshire case,'^ a few days before the statute had run upon a claim, the plaintiff sent to the defendant a proposition that if he would make her a wagon worth $75 she would give up the note. The defend- ant said that he could not make her such a wagon then, but would do so next year. The plaintiflF made no reply to the defendant's proposi- tion to make the wagon the next year, and the court held that tlie promise was not binding, and did not suspend the operation of the statute upon the note. It is unnecessary to multiply illustrations upon this point, as any dif- ferent doctrine from that stated in the text would be subversive of the principles upon which the doctrine relative to acknowledgments rests. A distinction is observed between the construction put upon a letter written or an acknowledgment made a short time after the debt has been contracted, and one written after the debt is barred. In the latter case, effect is properlj- given to anything which savors of a condition ; but where a person, being then a debtor who has no right to time, writes a letter asking for time, the reasonable construction is, that it is no con- dition, and that the writer has no intention of imposing a condition.' Thus, in the case last cited, before the statute had run upon the claim, the defendant wrote the plaintiffs as follows : "In reply to your state- ment of account received, I am ashamed the account has stood so long ; I must beg to trespass on your kindness a short time longer, till a turn in trade takes place, as for some time things have been very flat." This was held such an unconditional acknowledgment of the debt as to sustain an implied pi'omise to pay the debt, and rebut the statutory bar.* i Smith V. Eastman, 3 Cush. (Mass.) Exch. 282, it appeared that in 1845 J. 355. In Price v. Price, 34 Iowa, 401, it lent the plaintiff £200, on the security of was held, that a promise to pay a debt the joint and several promissory note of already barred by the statute which sub- himselfand two sureties. Between Novem- stitutes a different mode of payment, or ber, 1845, and February, 1847, J. bought that is not founded on a new consideration, of the plaintiff goods to the amount of £17. is not sufficient to remove the statute bar. In July, 1847, the plaintiff remitted J. £10 ^ Batchelder o. Batchelder, 48 N. H. for interest due on the note, and at the 23. . same time sent his bill for the goods. J. ' Pollock, C. B., in Cornforth v. wrote in answer; "I beg to acknowledge Smithard, 5 H. & M. 14. the receipt of £10 ca.sh, and the bill * Godwin v. CuUey, 4 H. & M. 373; amounting to £17, both of which sums I Sidwellw. Mason, 2 id. 306; Eiokei). Nokes, have placed to your credit. I have en- 1 Moo. & Ry. 359. In Evans v. Jones, 9 closed your bill; receipt it, and return it 240 STATUTES OF LIMrTATlON. [chap. VII. Sec. 79. By and to vrhom must be made. — It was forin^rlj" held in England,' as well as in the courts of this country,* that an acknowl- edgment of a debt to a stranger was as effectual to remove the statute bar as one made to the creditor himself. But under the niodern ruk, that an acknowledgment must be such as fairly raises an implied prom- ise to paj- the debt, it follows as a matter of course that the acknowledg- ment or promise must not only be made by a person legallj- competent to contract, ° but must also be made to the creditor himself, or some person duly authorized to act "for him in that regard, so that a new con- tract, resting upon the old one for its consideration, maj- be set up in reply to the statute, if it is pleaded by the defendant ; * and if it is made to me by post. " It did not appear whether the plaintiff had sent back the bill re- ceipted. In Febiuaiy, 1853, and after the death of J. , the promissory note was paid by one of the sureties, without taking credit for the £17. In May, 1853, the plaintiff sued the administratrix of J. for the £17, when she pleaded the statute of limitations. It was held that the above letter was a sufficient promise, within the 9 Geo. IV. c. 14, to take the case out of the statute of limitations. In this case it was urged that, unless the plaintiff receipted the bill as directed in the letter, the letter could not be regarded as an acknowledg- ment of the debt stated in it, as it was a mere offer to pay the bill by giving credit for the amount, and went for nothing un- less accepted, under the rule in Ashby v. James, 11 M. & \V. 542; but the court re- pudiated this claim. "We are bound," said Pollock, C. B., " to put a reasonable con- struction on this letter. Then, did not the person who wrote it mean to aay, in sub- stance, ' I have received the goods; I owe you a debt in respect to them which I will pay you; and I propose, as a convenient mode of payment, to set off the amount against the debt which you owe me'? . . . It -was never meant by the letter that there should be a peculiar mode of payment which should do away with the effect of the unqualified acknowledgment." 1 Peters v. Brown, 4 Esp. 46; Halliday V. Wavd, 8 Camp. 32; Clark o. Hougham, 2 B. & C. 149; Mountstephen v. Brooke, 3 B. & Aid. 141; Yea v. Fouraker, 2 Burr. 1099. 2 Newkirk v. Campbell, 5 Harr. (Del.) 880; St. John v. Garrow, 4 Port. (Ala.) 223; Oliver v. Gray, 1 H. &G. (Md.) 204; "Whitney v. Blgelow, 4 Pick. (Mass. ) 110; Minkler v. Minkler, 16 "Vt. 194. » Neither an acknowledgment or prom- ise, made by an executive officer of the government, is binding upon the latter, unless by some act of Congress they have express or implied authority to that end. Leonard v. U. S., 18 Ct. of CI. 382. Hannum's Appeal, 9 Penn. St. 471 ; Ward V. Hunter, 6 Taunt. 210; Tanner v. Smart, 6 B. & C. 603; Putnam «. Foster, 1 id. 246; Chapman v. Dixon, 4 H. & J. (Md.) 627; Atkins v. Tregold, 2 B. & C. 23; Quarles v. Littlepage, 2 H. & M. ( Va. ) 406; Fisher v. Duncan, 1 id. 668. An acknowledgment in order to take a claim out of the operation of the statute, must have been made by the debtor him- self or by a person duly authorized by him to make such acknowledgment. A general agent has no such authority. McMuUen V. Eafferty, 89 N. Y. 456 ; Miller v. Magee, 2 N. Y. Supp. 156 ; Tate ». Haw- kins, 81 Ky. 677 ; Havlock v. Ashbviiy, 19 L. R. Ch. D. 589 ; Huntington «. Chesmore, 60 "Vt. 566 ; McDonald b. Mc- Donald, 7 N. Y. Supp. 935; Ryal v. Morris, 68 Ga. 534 j Little w. Edwards, 69 Md. 499 ; ZoU v. Carnahaii, 83 Mo. 85, Morgan v. Bank, 13 Lea (Tenn.), 234 ; Nunbold o. Smith, 33 Ch. D. 127 ; hi TO HoUingshead, 87 Ch. D. 451. In nil the cases cited above it will be found ihnt authority express or fairly implied, i x- isted. The rule in the ca.se of an acknow- ledgment by an agent should, however, be very carefully piai-died. * * Ringo V. Brooks, 26 Ark. 540; Tusen V. Camblin, 1 111. App. 424; Niblack v. Goodman, 67 Ind. 174; McGreer v. For- syth, 80 111. 96 ; Faison i-. Bowdoin, 76 §79.] ACKNOWLEDGMENTS. 241 to an agent of the creditor, in order to make it operative it must appear that the debtor at the time Itnew that the person to whom the ackuowl- N. C. 425 ; Walker o. Albee, 80 111. 47; Kirby i;. MiUs, 78 N. C. 124; Trousdale v. Anderson, 9 Bush (Ky.), 276; Reeves v. Covell, 19 111. 189; Cape Girardeau Co. v. Harkinson, 58 Mo. 90; Sibert v. Wilder, 16 Kan. 176; Carroll v. Forsyth, 69 111. 127; Pearson v. Darrington, 32 Ala. 227; Fleming v. Stanton, 74 N. C. 203; Parker V. Shuford, 76 id. 219; Zacharias v. Zachar rias, 23 Penn. St. 452. The acknowledg- ment from which a promise to pay a debt can be implied must be made to the cred- itor or some person acting for him, and not to a stranget. Bloodgood v. Bruen, 8 N.Y. 362. Spangler v. Spangler, 122 Penn. St. 358; Cunkle v. Heard, 6 Mackey (D. C), 485. Parke, B., in Badger h. Arch, 10 Exch. 333. Prior to the adoption of the new theory in relation to acknowledgments, initiated by Tanner v. Smart, ante, an ac- knowledgment made to a stranger was held just as operative to remove the bar of the statute as though it had been made to the creditor himself, the only question being whether it was made in earnest or in jest. In Moore v. Bank of Columbia, 6 Pet. (TJ. S.) 86, the defendant, being at a tavern with a party of friends, said to them that he had paid off every debt except one five- hundred-dollar note which he owed to the hank, and coiild pay off at any time; and it was held that this was not sufficient to remove the statute bar, because the place and the occasion and manner in which the declaration was made were such as to repel the inference that it was intended as a seri- ous admission that the debt still existed against him so as to impose a duty upon him to pay it. See Wainman v. Kynman, 1 Exch. 118, where this was held a question for the jury. In England, prior to the pas- sage of LoKD Tenterden's act, and while the theory as to presumptions arising from the statute prevailed, it was held to be immaterial whether the acknowledgment or promise was made to the creditor or a stranger, and such was the rule in this coun- try; and as that statute, upon a fair con- struction, did not affect this question, the change in the rule is due entirely to a change in the theory of the law in this regard. Illustrative of this rule is Mountsterhen v. Brooke, 3 B. & Aid. 141, in which, in a deed made between the defendants and a third peraon, admission was made by the defend- ants of a debt due to the plaintiffs, who were strangers to the deed, and it was held sufficient; Abbott, C. J., remarking, that the legal effect of an acknowledgment, even though made to a stranger, was it- self sufficient to raise a promise to pay. Again, in Halliday v. Ward, 3 Camp. 32, where the defendant, a Quaker, wrote to his father, who was a co-obligor with him on a promissory note, as follows: "With regard to Halliday's money, thou must settle it thyself," Lord ELLENBOROueH said that the letter acknowledged the- existence of the debt, and that the prom- ise to pay (although the debt was not ac- knowledged to the plaintiff) was raised by law. So, in Clark w Hougham, 2 B, & C. 149, an admission to one of the several parties was held to inure for the benefit of all for the purpose of the statute of limita- tions; and though it was suggested that the admission was made to one as the agent of the others, it was expressly stated by Baylet, J., that agency was not necessary to be proved. So far it might seem that,, as well under the new theory of acknowl- edgment as under the old, an admission to. a third person was deemed sufficient, as it might be gathered from these remarks that a promise to pay a creditor may be implied from an admission not made to him per- sonally. There are, however, a large num- ber of more recent judicial decisions on the- other side, and holding the only consistent doctrine that such an acknowledgment is- not sufficient. Thus, in Godwin v. Oulley, 4 H. & M. 375, Martin, B., distinctly- laid down that an admission to a tliird person is not sufficient for the purpose, and' Bramwell, B., expressed a similar opin- ion. And again, in Grenfell v. Girdlestone, 2 Y. & 0. 662, Alpekson, B., expressly raises and decides the point. "If," says he, "a man were to write a letter to s> third person acknowledging the debt, it would not take it out of the statute; " and the doctrine there announced has ever since prevailed in that country, and is the rule prevailing in this. Kyle v. Wills, 13 Penn. 242 STATUTES OF LIMITATION. [chap. vn. edgment or promise was made was acting as the agent of the creditor, or was made to a person under such circumstances as show an inten- tion on the part of the debtor that such person should communicate the acknowledgment to the creditor, so that such person may fairl_y be said to be the debtor's agent for that purpose,' or it will have no more effect than it would have if made to a stranger.^ But it has been held that a promise or acknowledgment made to the creditor or his authorized agent will inure to the benefit of his assignee.' So, too, the acknowl- edgment must be made by a person who is legally competent to con- tract ; because, as the acknowledgment, to be operative, must be such as to raise a new contract to paj-, resting upon the old debt for its consideration, it follows as a matter of course, that at the time when the acknowledgment or promise was made the party must have been competent to contract, so that he could be legally bound ; and if he was resting under any legal disability at the time, it will be inoperative ; * sm&, except where the statute otherwise so provides, where an acknowl- edgment in writing is required, it is held that the acknowledgment must be made by the debtor personally." Where, however, the stat- St. 286; Gillingham v. GilUngham, 13 id. * Kline v. Guthart, 2 Penn. 490; Rioh- 302; Bloodgood a. Bruen, 8 N. Y. 362, mod. Petitioner, 2 Pick. (Mass.) 567. and cases previously cited in this section. 1 Bachman v. Roller, 9 Baxt. (Tenn.) 409, 40 Am. Rep. 97. In De Freest v. Warner, 98 TST. ¥. 217, it was held that •an acknowledgment of indebtedness made ■fay a debtor to a stranger, with the intention that it shall be communicated to and in- fluence the creditor, is as effectual to de- feat the statute of limitations as if made ■to the creditor or his authorized agent. Thus the maker of certain ■promissory notes conveyed his real estate to his sons by deed containing a dause to the effect that the lands were conveyed subject to and charged with the payment of the notes ; that they formed part of the consideration, and that the grantees assumed and agreed to pay the same. In an action upon the notes, where the statute was pleaded as a bar, it was held that the acknowledgment in the deed must have been intended to be communicated to and to influence the ac- tion of the holder of the notes, and, as the action was commenced within six years after such acknowledgment, that it was not barred. 2 McKinney v. Snyder, 78 Penn. St. 497. 8 Pinkerton v. Bailey, 8 Wend. (N. Y. ) 600. But see Cripps v. Davies, 12 M. & W. 159. An acknowledgment must be made to the creditor or his agent. Croman v. Stall, 119 Penn. St. 91 ; Fort Scott v. Hickman, 112 U. S. 150 ; Roscoe v. Hale, 7 Gray (Mass.), 274; Comer u. Allen, 72 Ga. 1 ; Niblack v. Goodman, 67 Ind. 174 ; Du- guid V. Scofield, 32 Gratt. (Va.) 803; Hussey v. Kirkman, 95 N. C. 63 ; Clauson V. McKune, 20 Kan. 337 ; Hargis v. Smell, 87 Ky. 63 ; McKinney «. Snyder, 78 Penn. St. 497 ; Libby v. Robinson, 79 Wis. 168; Maxwell v. Reilly, IT Lea (Tenn.), 307 ; Aekerman v. Sherman, 9 N. Y. 91 ; In-re Kendrick, 107 N. Y. 104. In New York it is held that an acknowledgment to a third person, with the intention that it shall be communicated to the creditor, is sufficient, De Freest v. Warner, 98 N. Y. 217, and there is dicta in many cases to the same effect. Bachman v. Roller, 9 Baxt. (Tenn.) 409. But it will be seen that this necessarily involves the rule stated supra, because under such circum- stances the debtor makes the stranger his agent, for the purpose of renewing the debt. 6 Hyde v. Johnson, 3 Scott, 289; Pott V. Clegg,16 M. & W. 321; Gibson v. Bag- hatt, cited in Whippy v. Hillary, 5 C. & P. 209. § 79.] ACKNOWLEDGMENTS. 243 lite does not require that the acknowledgment should be made in writing and signed bj'' the party to be charged, and it is not made by the debtor in person, it must be made bj- some person bj' him thereto legallj- authorized.' But, under tlie statute of James, it was held that the acknowledgment might be made either by the defendant in person or by Ins agent, and power to acknowledge might be implied. Thus, in one case,^ where an agent was employed to paj* money for work done, and the workmen, with his consent, were referred to liim for payment, it was held that an acknowledgment or promise made bj' him was suffi- cient to remove the statute bar ; and in another case,' Lokd Eli.en- BOROUGH la3's down the general rule, that if a man refers another upon any particular business to a third person, he is bound by what this third says or does concerning it, as much as if that had been said or done by himself. Under this rule an admission by a wife, who was accustomed to conduct the business of her husband, was held sufficient to take the case out of the statute in an action against the husband.^ And where goods were supplied to a wife usually living apart from her husband, for her own use, she was considered to be her husband's agent for the pur- pose of making an acknowledgment. ° But a married woman cannot effectually acknowledge a debt contracted dum sola? Under the rule as stated, that an acknowledgment or promise, in order to take a debt out of the statute, must be made to the creditor or his agent, it follows as a matter of course that a recognition or admission of a debt, in a paper or document not intended for the creditor,' or which, if he is a party thereto, was never delivered to him,* cannot have the effect to raise a new promise to paj' the debt. Thus, the entry of a check on the books of the drawer as unpaid ; » the insertion of a debt in the schedule of debts filed and sworn to in insolvency proceedings ; " a private memorandum of the debt in a book of the defendants ; '' a written acknowledgment of the debt, found among the debtor's papers after his decease ; ''^ or a mort- gage duly executed, to secure the payment of the debt, but never deliv- ered,''' — have all been held insufficient to renew the debt. So, too, it is held that a debt is not revived by a clause in the debtor's will, direct- * Kingo V. Brooks, atiM. Georgia Ins. Co. v. Endicott, Taney 2 Burt». Palmer, 5 Esp. 145.- (U. S.), 130 ; Richardson v. Thomas, 13 * Williams v. Innes, 1 Camp. 364. Gray (Mass.), 381. But an inventory and * Anderson t. Sanderson, Holt N. P. affidavit of a debt, made for the purpose of 591. securing a discharge from the deht in in- ^ Gregory v. Parker, 1 Camp. 394. solvency, has been held sufficient, Bryan « Pittam V. Foster, 1 Bam. & Cr. 248. v. Wilcox, 3 Cow. (N. Y.) 159 ; as in such T Merriam ». Leonard, 6 Cush. (Mass.) a case the creditor may be said to be a 151. party to the proceedings. 8 Allen V. Walton, 70 Mo. 138. " Edwards v. Culley, 4 H. & M. 378, 9 Harmon «. Claiborne, 1 La. An. 342. Pollock, C. B. 10. Hidden v. Cozzens, 2 E. I. 401 ; " Allen v. Walton, 70 Mo. 138. Christy v. Flemington, 10 Penn. St. 129 ; i' Merriam v. Leonard, 6 Cush. (Mass.) Brown «. Bridge, 2 Miles (Penn.), 424 ; 151. 244 STATUTES OF LIMITATION. [CHAP. VH, ing that all his just debts shall be paid,' nor will such direction stop the runniug of the statute.^ In all the cases where a contrar3' rule is adopted, it will be found that the question arose, and was decided under the old tlieory that the statute raises a presumption that the debt has been paid, and that the debtor has lost the evidence thereof, and an acknowledgment rebuts this presumption, or that the case is distinguishable from these, and the acknowledgment or promise was made under such circumstances that the creditor not onlj- had a right to rely upon, but could legally enforce it; and this condition exists when it is predicated upon a uew consideration, or the circumstances are such as to show that the debtor intended that it should be communicated to the creditor, or that it should renew the debt ; ' and this intention may be implied from the circumstances. Thus, where a dying man said to a bystander that he owed the plaintiff a certain sum for a slave, which he desired to have paid,' it was held a sufficient acknowledgment; and, although this was held at a time when the old theory prevailed, it is equallj- applicable under the new, because it shows an intention on the debtor's part to have the debt kept on foot. In a late case before the General Term in New York,^ the defendant, as one of the executors of the testator em- braced in an inventorj' of the assets of the estate, made and verified bj* him in the usual form, certain notes given by him to the testator in his lifetime, and upon which the statute had run, and it was held a sufH- cient acknowledgment in writing to take the notes out of the statutes. Brady, J., in delivering the opinion of the court, after adopting the rule as to the character of an acknowledgment required to take a debt out of the statute, as held in the courts of that State, ° said : " It seems to be impossible reasonably to draw any other inference from the state- ment of them (the notes in suit) as assets, when he had it in his power to characterize them as outlawed and valueless. He could, at least, have assumed that attitude, but there is no evidence that he did so. . . •. The statement of the notes as assets is in itself sufficient to take them 1 Smith V. Porter, 1 Binn. (Penn.) 209; estate was held not sufficient to estop the Agnew V. Fetterman, 4 Penn. St. 56. executor from setting up the statute to 2 Rush V. Fales, 1 Phila. (Penn.) 463. defeat the same ; and we are inclined to ' Jordain f. Hubbard, 26 Ala. n. s. believe that this is the better rule, as sueli 433; CoUett ». Frazier, 3 Jones Eq. (N. C.) an act can hanlly be said to be voluntary, 86. but is merely done in the performance of * Collett V. Frazier, ante. a duty required and imposed by law. 6 Ross V. Ross, 6 Hun (N. Y.), 80 (1st « Winchell v. Hicks, 18 N. Y. 560 ; dppt. ). S^e also Behrens v. Boutte, 31 Masher v. Hubbard, 13 Johns. (N. Y.) Li. An. 112, where a similar doctrine was 510 ; Frost v. Benough, 1 Bing. 266 ; held as to a debt presented against the es- Bloodgood v. Bruen, 8 N. Y. 368 ; Turner tate, and which the executor entered as a v. Martin, 4 Robt. (N. Y. S. C.) 661 ; claim against the estate to be paid. But Loomis v. Decker, 1 Daly (N. Y.), 186 ; see Bell's Estate, 25 Penn. St. 92, where, Com. Mut. Ins. Co. v. Brett, 44 Barb, under a similar state of facts, the insertion (N. Y. ) 489 ; McT^Tamee v. Tenney, 41 id. of his own note in the inventory of the 506. § 79.] ACKNOWLEDGMENTS. 245 out of the statute." ^ In a Maine case,'^ the defendant, who was treas- urer of the plaintiff corporation, as such made charges against himself in the corporation books for interest on a note given bj- him to the corporation, and it was held such an acknowledgment of the note as removed the statutory bar.' There is also a class where, although the acknowledgment or promise was not made directly to the creditor or his agent, yet being made for the purpose of deriving, and having derived, an advantage therefrom, it is, in effect, held that he is estopped from setting up the statute, upon the ground that he cannot be allowed to take the benefit of the acknowledgment and then repudiate its obligation. That is, where a debtor under such circumstances derives an advantage from the acknowledgment, he is treated as having in- tended that it should be accepted as such, and confided in by the creditor.' In the case last cited, in which this question is carefully and ably considered, it was held that where a maker of a note, in a deposition made by him in a case to which the payee of the note was not a part}', swore that the note was an outstanding obligation against him, for the purpose of getting credit for the note as to be paid by him, and upon which he did obtain such credit, the acknowledgment was such that the creditor could avail himself of in answer to a plea of the statute, set up to defeat an action upon the note. The court said : " The next and only remaining ground of error is, that the plaintiff, not being a party to the suit in which the deposition was taken, the statements therein cannot be construed as admissions or acknowledg- ments made to him, and that no promise of payment can be implied from an acknowledgment of a debt so as to take it out of the operation of the act of limitations, unless such acknowledgment be made to the creditor to whom the debt is owing, or to some person representing him by authority." The court referred to Joj-nes on Limitations, 120, where it is stated that the acknowledgment is sufficient if made to a third person, and proceed : " Since the publication in 1844 of this excellent treatise on limitations, there have been numerous decisions, both in England and the United States, adverse to the views expressed by the distinguished author ; and it is said in a recent work of merit, that, according to the very decided weight of the latest decisions in this 1 Bryan v. Wilcox, ante. In Stuart s But qucere, can snch an aotnowledg- II. Foster, 18 Abb. Pr. (N. Y.) 305, ment be regarded as sufficient under tbe Jambs, J., said: "The code does not statute in Maine, which provides that no define what the writing shall be; it merely acknowledgment, &c., shall be suificient, requires the acknowledgment or promise to unless such acknowledgment or promise be be in writing, signed by the party charged, an express one, and made or contained in and, for aught I can see, it can as effectually some writing, signed by the party charge- be made in a general assignment for the able thereby ' benefit of creditors as in any other instru- 4 Duguid v. Soholfield, 32 Graft. (Va.) ment." 803. » Blue Hill Academy i'. Ellis, 32 Me. 200. 246 STATUTES OP LIMITATION. [CHAP. VII. country, a promise to pay a debt, made to a person not legally or equitably interested in the same, and who does not pretend to have had any authority from tlie creditor to call upon the creditor in relation to the debt, will not avoid the bar of the statute." ^ The court, fully admitting and sustaining the doctrine that an acknowledgment or promise made to a stranger is inoperative, distinguishes the case in hand on the ground that the deposition was made to establish the vahdity of the debt, and gain him credit for it, and " he must therefore be understood to have intended that his acknowledgment of the debt, under the attending circumstances, should be accepted as such, and confided in and acted upon by the creditor to whom the debt was due. He cannot be allowed to take the benefit of the acknowledgment and then repudiate its obligation." With the exceptions named, it is now generally held that a debt cannot be revived through the instrumen- tality of casual conversation with persons neither legally nor equitably interested in the debt. Sec. 80. Offer to arbitrate, Recital in Deeds, &c. — Under the old rule, that a naked admission that a debt existed would remove the statute bar, although the words and acts of the parties repelled the in- ference of a promise to pa}-, an offer or agreement to refer or arbitrate claims barred by the statute was held suflBcient ; ^ but under the rule now existing, that an acknowledgment must be such that a promise to pay can be implied, such an agreement of itself would be insufficient.' So, too, under the old rule, a recital in a deed to which the creditor was not a party, of a debt barred by the statute, was held sufficient to revive the debt; * but the question as to whether such a recital would now be deemed sufficient is dependent upon the circumstance whether it is made under such circumstances that the creditor can rely upon it as a promise to pay the debt in question, and maj' set it up in reply to a plea of the statute. In a Virginia case,^ referred to elsewhere in this work, this question is carefully considered; and the court, aftei'a careful review of the cases, and the principles upon which this branch of the law rests, says : " The diversitj' in the earlier and later cases is attributable for the most part to the different and somewhat antagonistic theories entertained at different periods concerning the design and policy of the statute. Under the leadership of Lord Mansfield, it was for a long time considered, and held, that under the statute lapse of time raises a mere presumption of satisfaction, which, like other 1 Eingo V. Brooks, 26 Ark. 540 ; Gil- ^ Conkling v. Thackstoii, C. & N. 93 ; lingham v. Gillingham, 17 Penn. St. 302 ; Barney v. Smith, 4 H. & J. (Md.) 496. Morehead v. Wriston, 73 N. C. 398; Wach- » SJiaw v. Newell, 1 R. I. 488 ; Russelt ter V. Albee, 80 111. 47 ; Kisler v. Sanders, v. Gass, Mart. & Y. (Tenii. ) 353. 40 Ind. 78 ; Sibert u. Wilder, 16 Kan. « Mountstephen «. Brooke, 3 B. & 176, 22Am.Bep. 280 ; Fletcher w. Updike, Aid. 141 ; Clark v. Hougham, 2 B, & C. 3 Hun (N. Y.), 350; Cape Girardeau 149; Kingw. Riddle, 7 Cranch (U. S.), 168. County V. Harbison, 58 Mo. 90 ; Trous- ^ Duguid v. Soholfield, 32 Gratt. (Va.) dale V. Anderson, 9 Bush, 276. 803, 35 Am. Rep. 417, u. § 80.J ACKNOWLEDGMENTS. 247 presumptions, might be repelled; aud hence that a new promise of the debtor, whether express or implied, was only evidence of the pre-existing debt, and gave no new cause of action. Subsequently this theory was overturned, aud succeeded by a course of decisions, initiated and fostered by Chief Justice Best, which regarded and construed the statute as one of repose, and a new promise as a new contract, and actionable as such. This view is now generally adopted.^ It would seem to follow logically that the promise, to be sufficient to take a case out of the statute, should be made directly or immediateh* to the creditor, or at least for his benefit, so that he ma^- be able to maintain an action upon it. It is said that the declaration or admission to a third person is deemed insufficient, not so much because the acknowledgment is made to a stranger, as because there is no sufficient evidence of an intention to promise."^ In this view of the law, which is the only view that is consistent with the present theorj-, which requires an acknowledgment to be of such a character that a new promise to pay the debt may be implied therefrom, sufficient to enable the creditor to set it up as a reply to the statute as a- new ground of action, it follows that in order to make the recital of a debt due to a person not a party thereto, in a deed or other instrument, sufficient to remove the statute bar, it must be made under such circumstances and for such a purpose as to clearly indicate that the debtor intended that such recital should be confided in and relied upon by the creditor as an acknowledgment of the existence of the debt, and his intention to pay the same, * and also in such a manner and under such circumstances that he can rely upon it as a distinct ground of action to rebut a plea of the statute. Thus, it has been held in Iowa that if a mortgagor, in a subsequent mortgage, or in a deed of the same premises, should refer to a prior mortgage, which is barred by the statute as unpaid, and a lien upon the premises, to which the deed or second mortgage is subject, it is a sufficient acknowledgment to take the prior mortgage out of the statute both as to the mortgagor and the mortgagee ; ^ and the same rule would apply to any instrument in which the debt is recited under such circumstances and in such language as to evince an intention on the debtor's part to keep the debt on foot, and to give the creditor the right to rely and act upon such recital. As if A., being indebted to B., enters into a written contract with C, by the terms of which C. agrees to pay A.'s debt to B., this would be a sufficient acknowledgment to create a new promise. That the recital of such a mortgage debt, in a subsequent mortgage before the statute has run thereon, does not operate as an acknowledgment in writing, as is required by the statute to keep the debt on foot for another statutory 1 Slbert V. Wilder, 16 Kan. 176, 22 » See Duguid v. Scholfield, ante. Am. Rep. 280. * Palmer v. Butler, 36 Iowa, 576. ^ 1 Smith's Leading Cases, Part II. marg. page 976. 248 STATUTES OF LIMITATION. [CHAP. VTL period, has been held in the English courts ; and this would seem to be the true rule. Thus, in an EngUsh case,'' under the statutes &4 Wm. IV., requiring an acknowledgment or promise to be in writing, an action of covenant was brought on an indenture of mortgage of certain houses executed in 1824 by the defendant in favor of the defendant's testator ; the plaintifl", in order to take the case out of the statute, gave in evidence a. deed executed by the defendant within twenty years, but to which neither tlie plaintiff nor his testator was a party. The deed, after reciting that the defendant had executed a mortgage upon the propertj' conveyed thereby to the plaintiff's testator, for securing to him the sum of £320 and interest, stated that he conveyed that and other propertj' to trus- tees, on trust to sell, and out of the proceeds of the sale to pay off all the mortgages and other incumbrances atfeeting the propertj-, and then to pa}' the creditors. The court held that this was not a sufficient acknowledgment in writing of the debt in question to take it out of the operation of the statute. The true amount of the mortgage in suit was £400 ; but it was satisfactorily proved that the mortgage recited in the deed was intended as the one in suit, and that the amount was stated at £320 bj- mistake. In passing upon the efliect of this recital, EoLFE, B., said : " Giving to the recital its fullest import, we can only understand it as a statement made by the defendant in January, 1829, that he had in June, 1824, conveyed the houses in question bj' way of mortgage to the plaintiff's testator, to secure £400, then due to him from the defendant, and that the mortgage still remained vested in the mortgagee. The recital would be quite true even though the mort- gagee should have been in possession of the property, and should, out of the rents and profits, have fully satisfied himself his debt and in- terest. The trust to pay in the first instance all mortgages, charges, &c. , amounts to nothing : it is no more than the trustees would have been obliged to do if no such trusts had ever been expi'essed, and, froril the generality of its language, it evidently is a clause introduced by the conveyancer, without reference to the existence of any particular mortgage-deed." In a later case,^ where a deed conveying the equity of redemption of certain lands contained a recital of a previous mort- gage thereon, and stated that both the sum of £1,200 and £300, which the mortgage was given to secure, remained unpaid, " all interest for the same having been paid," up to the date of the deed, and the assignee of the equity covenanted to pay the mortgage, and it was proved that the assignee of the equity had paid the interest thereon regularly ever since, it was held a sufficient acknowledgment of the debt to keep it on foot for a period of twenty j-ears from the date of the deed. Sec. 81. When Ackncwledgment must be made. — In some of the cases a distinction is made between the recognition of a debt before 1 Howoutt V. Bonser, 3 Exch. 499. " Forsythe v. Bristowe, 8 Exch. 721. § 81.] ACKNOWLEDGMENTS. 249 the statute has run upon it, and one upon which the statute has already run ; ^ but the rule generally adopted, and the only tenable one, is, that it is immaterial whether the acknowledgment precedes or follows tlie bar,^ as in all cases it is only necessary to establish the continued ex- istence of the debt at the time when the action was brought. For- merly it was held that the recognition of a debt, even after action brought, was sufficient to remove the statute bar ; ' but under the theory that an action upon such a claim can onlj- be brought where an implied promise can be raised, it follows as a matter of course that the ackuowl- edgment or promise must have been made before the action was brought.' The distinction between the acknowledgment of a debt before and one after the statute has run consists merelj' in its effect upon the debt and the remedy. An acknowledgment or promise made before the statute has run vitalizes the old debt for another statutory period dating from the time of the acknowledgment or promise, while an acknowl- edgment made after the statute has run gives a new cause of action, for which the old debt is a consideration.^ The plaintiff may, in the latter case, but not in the former, declare upon the new promise ; ^ but the practice in most of the States is to declare upon the old debt, and, when the statute is pleaded, to reply the new promise, and the issue is then upon the plea and the replication, the replication to that extent being treated as a declaration upon the new promise ; and in most of the States this is held to be the only proper remedy, and is certainh- the safest.' And it makes no difference in this respect that the promise is conditional.^ If the debtor does not perform the conditions agreed to 1 Bowdre v. Hampton, 6 Rich. (S. C.) ' Lord v. Shaler, 3 Conn. 131 ; Dean v. 208 ; Deloach v. Turner, 7 id. 143 ; Young Hewitt, 5 Wend. (N. Y.) 257 ; Pinkerton ■0. Monpoey, 2 Bailey (S. C), 278. v. Bailey, 8 id. 600 ; Irving v. Veitch, 3 2 Ayers v. Richards, 12 III. 146 ; Lit- M. & W. 90. tie ». Blunt, 16 Pick. (Mass.) 359 ; Austin * In Irving v. Veitch, ante, this ques- V. Bostwick, 9 Conn. 496 ; Carlton v. tion was fuUy discussed, and decided ac- Ludlow Woollen Mill, 27 Vt. 496 ; Bowen cording to the statement in the text. In V. Miller, 3 Clark (Penn.), 326; McWU- that case the defendant wa.s indebted to liams's Estate, id. 321 ; Steel v. Steel, 12 the plaintiffs in a balance of £2,245, for Penn. St. 64 ; Yaw v. Kerr, 47 id. 333 ; which they held his overdue promissory Agnew V. Fetterman, 4 id. 56 ; Fomey v. note. In 1827, the plaintiff and defendant Benedict, 5 id. 225. agreed that the defendant should pay the 3 Danforth v. Culver, 11 Johns. (N. Y.) balance as follows : £245 in ca.sh, and the 146. remainder by annual payments of £300 * In Bateman ■;. Pindar, 3 Q. B. 574, a year out of his salary as a consul abroad, a part payment made after the action was and by the proceeds of certain wines con- brought was held inoperative to remove signed by him to India ; and that the the statute bar; and this doctrine is a plaintiff should hold his promissory note as necessary sequence of the theory that an a security for the payment of the account, acknowledgment or new promise creates a The £245 was paid, and the £300 was new cause of action. also duly paid in 1828 and 1829, but the 5 Carr ». Robinson, 8 Bush (Ky.), 269. defendant made default in payment of it 6 Lonsdale v. Brown, 4 Wash. (U. S.) in September, 1830. It was held that the 149 • Little V. Blunt, 9 Pick. (Mass.) 488. plaintiffs were entitled, at anytime within 250 STATUTES OF LIMITATION. [chap. VII. by him, the creditor is remitted to bis original remedy and to a plea of six years from September, 1830, to sue the defendant on the promissory note, or for the balance remaining due, on a count upon an account stated. It was contended by the defendant, among other things, upon the authority of Tanner v. Smart, 6 B. & C. 603, and Haydon v. Williams, 7 Bing. 163, that, as the plaintifif sought to repel the statute by a conditional prom- ise, he should have declared on the new promise. But the court in effect held that, unless at the time when the new agreement was entered into, it was under- stood and intended by the parties to be a, substitute for the old debt, its only effect was to keep the old debt on foot, the new promise being merely collateral thereto. Lord Abinger, C. B., in passing upon this question, said : " The question is, whether or no when a party has a debt for which he has a right to bring an action on account of such re-engagement as is proved here, when that engagement is broken by the party who makes it, that breach re- mits the creditor to his original right to sue in the same way as he originally might have sued. If that had been an original question in this case, if there had been no current of authorities on the subject, and the case had been res Integra, it might have been a good ground for discussion whether the statute had barred the rem- edy on the original promise ; if so, then this action ought to have been on the new promise. But I think that has been set- tled, and soon after the statute passed ; and if anybody will take the trouble to look at Sir William Jones's Reports, and to the Modern Reports, and other reports which were published about the time of Charles II., and in the reign of William III., he will find that very point discussed and settled, — whether rightly or wrongly we are not now about to inquire, — that the party is remitted to his original form of declaration. The first case which arose on the statute of limitations was in the Court of Chancery ; it was more common in those days for matters of account to be taken there, and the Chancellor was in the habit of referring to the judges of the common- law courts as to what was their construc- tion of the statute ; but it was the practice for the defendant to plead the whole stat- ■ ute, and set it forth ; and the plaintiff, if he relied upon the new. promise, specially replied to it. According to the modern mode of pleading, the plaintiff takes issue on a general plea of the statute, and gives the matter in evidence, and it is not pleaded to by a replication : but the ques- tion arose very early, whether or not, where upon the face of the declaration the contract appeared to be out of time, the defendant might demur ; and the court decided he could not. The principle upon which they decided that an acknowledg- ment of the debt gave the party a new right was, that where a man was indebted to another for an originally good consider- ation, and the statute of limitations barred the remedy when six years had elapsed, yet if there was a good consideration for a new promise inforo consdentice, — an equi- table and conscientious consideration, that made the promise binding ; the result of which might have been, as I said before, to oblige the plaintiff to declare upon the new promise ; but the couit held that was not necessary. I will now refer to a more modem case, which came before the court on a writ of eiTor, Gould v. Johnson, 2 Ld. Raym. 838 : that was an action upon a bill of exchange, where upon the face of it the time had elapsed some years, and there was a promise stated to have been made in writing several years before ; and upon the writ of error the objection was taten that the count could not be maintained : but the answer was, that it was not neces- sary for the party suing to set forth any- thing but the original right of action as it stood ; and two reasons were given by the judges: one was, that the other party might reply that the writ was issued so as to keep the cause of action alive, and within the six years ; and the other was, that he might reply generally. There is also a case of Leaper v. Tatton, 16 East, 420, in which this very question arose in the Court of King's Bench. That was as- sumpsit on a bill of exchange, and also upon an account stated ; the bill was pay- able above six years before the action was brought ; it was contended at the trial that the promise to pay within the six years §81.] ACKNOWLEDGMENTS. 251 the statute thereto, and he must reply the uew promise ; and if, upou the took it out of the statute. Loed Ellen- BOKOUGH haring directed a verdict to be found for the plaintiff, a motion was after- wai'ds made, and that very objection was taken, that the declaration ought to have been upon the new promise. Loed Ellbn- BoRouGH had a very considerable knowl- edge of the forms of pleading ; and his an- swer was, that if this was the right form of declaration that was insisted upon, it was enough to say it had never been in use, but that it was the common practice to declare on the original conti'act. It is said, however, that this doctrine does not apply to this count on an account stated. 1 see no reason for that ; the account stated is nothing more than the admission of a balance due from one party to another ; and that balance being due, there is a debt; and when a man is indebted, there is al- ways a good consideration for his promise. The very statement of the account, and admission of the balance, implies a promise in law to pay it. If at the time that is done another engagement is made, which binds the party to pay the diflference in a certain course of payment, which prevents the piirty from bringing the action until a certain period has elapsed, what is the result ? Why, if the debtor does not per- form that engagement, the creditor is re- mitted to his original right j and we ought to presume a promise to pay at the time because the defendant is indebted, which forms a good consideration for the promise; but the promise could not exist during the running of the conditional contract, be- cause it was an open contract, and he was capable of performing it. Therefore, I see no difficulty at all in supporting the plaintiffs right to sue upon the original contract, the moment the new contract was broken by the non-payment of the instalment due in the year 1830. This doctrine is also held in other cases, as well as in relation to bills of exchange. One is the case of Wittersheim v. The Countess Dowager of Carlisle, 1 H. Bl. 631, where it appeared that the plaintiff had taken a, bill of exchange as a security for money to be paid in a certain time, and he did not bring his action until after the six years had elapsed from the time he lent the money. The court held, that though on a mere loan of money the time of limitation might commence from the date of the loan, yet where the money was lent on a special contract for repayment, it was the time of the repayment that ought to fix the period of the limitation. So I say here, the right of action only accrued from the time the contract made in 1827 was broken by the defendant ; and that being within the six years, the plaintiffs are entitled to sue ; but if any doubt could exist, — I own none exists in my mind, — the ac- count stated is the same in principle as goods sold and delivered; but if that fails, what shall be said of the promissory notes ? It is expressly a part of the bar- gain that the promissory notes shall stand as a security for the performance of the contract, — for the payment of the money agreed upon to be paid by instalments. Is that part of the contract inoperative and ineffective, and to go for nothing ? What is the meaning of it, but that the plaintiflFs shall be at liberty to sue on the notes, if the defendant does not comply with the contmct ? Can they sue on the promis- sory notes in the mean time ? Certainly not ; but they might have brought their action the very day after' the defendant failed to perform the contract, by paying the instalment of ^£300 a year ; that was within the six years from the time the action is brought, and that is to be taken as the time when the action accrued. On these grounds, it seems clear to me that the payment of the instalment under the contract having failed, and a breach having taken place in the performance of it, this remitted the plaintiffs to their original right to bring an action, either on the ac- count stated or upon the promissory notes, at the time when the breach was com- mitted." Pakke, B., said : " I am of the same opinion in this case, that the rule should be discharged, on the third ground upon which the case was sought to be taken out of the statute of limitations : that ground is, that there was an agreement between the parties in the year 1827 which consti- tuted a new and binding agreement be- tween them distinct from the original debt; 252 STATUTES OP LIMITATION. [chap. vrr. plaintiff's part, there is no fault as to the failure of the conditions, the new and the doubt I have had during the course of the argument was, only whether or not it was necessary to declare upon that agi'eement, or whether the plaintiffs could recover upon either count of this declai-ation. Now it is clear to my mind, that unless this was a binding and valid agreement between the parties, giving the plaintiffs a new remedy for a new consider- ation, the transaction in 1827 would not have taken the case out of the statute of limitations. It is essential, in order to take the case out of the statute of limita- tions, that there should be a new and binding agreement between the parties, and a new consideration to pay the debt by instalments, and upon failure in pay- ment of those instalments, to pay the other original debt ; and although Me. Kelly succeeded in raising a doubt in my mind whether there was any fund pro- vided by means of the assignment of the consular salary, so as to constitute a new engagement, though I have a doubt whether there is such a binding engage- ment, I have no doubt whatever that there was a sufficient consideration in Cock's accepting the bill of exchange on behalf of the defendant, as the price of the plain- tiffs' giving time upon the original prom- issory notes. There can be, I conceive, no doubt on this part of the case that Mr. Cock having become liable to pay the amount of his acceptance, in consideration of the plaintiffs' giving time to Veitch upon the promissory notes until any fail- ure should take place in the payment of the salary, that is a new and binding en- gagement between the parties; and there is no doubt the declaration could have been so framed upou the new agreement ; and thei'e would have been no breach of that agreement until the month of September, 1830, when the first failure took place in the payment of the consular salary. The ques- tion then is, whether the declaration as it stands at present is not sufficient, and whether the case cannot be taken out of tlie statute, upon this declaration, by means of the new engagement ; and, after having entertained some doubt, I think it is taken out of the statute, and the count upon the promissory note may in this case be suSicient. On looking to the terms of the agreement, it appears to me that it amounts to an agreement on the part of the defendant to pay by instalments, and, provided the instalments are not duly paid, to pay the original debt ; it is, thpre- fore, a promise, in certain events, to pay the original debt itself, and those events have occuiTed by which the original debt has become payable, because the instal- ments have not been duly paid, there hav- ing been a non-payment of the last instal- ment in September, 1830; therefore, the conditional promise to pay the original debt becomes absolute, and the defendant becomes indebted upon the promissory notes ; and then, I take it, we may apply to this case the principles laid down by the court in the case of Stone v. Rogers, 2 M. & W. 443, that those events having happened which have made the defendant a simple debtor by virtue of his new promise, he may be declared against as being indebted upon the promissory notes; and it is upon that ground, it seems to me, that the counts upon the promissory notes may be sustained. "With respect to the count upon the account stated, I do not mean to intimate any difference of opinion with my Lord Chief Baron on the subject ; but I must own I feel some doubt whether, from the peculiar form of it, there has been that species of accounting which the count charges ; and therefore I would rather found my judgment upon the counts on the promissory notes, because I am quite satisfied as to that ground, and feel some doubt upon the account stated. Feeling that the courts have not intended that there should be any difference in its im- port from the old account stated, and that being apparently an account stated of a debt then due and payable upon the notes, I feel some little donbt upon that ; but as to the counts on the promissor}' notes, I think there is abundant evidence of a prom- ise to pay the notes, and the defendant is a simple debtor for that amount ; and I do not understand that there is any case which is at variance with that conclusion. The two cases of Tanner v. Smart and Haydon v. Williams were cited by Mil. §81.] ACIiNOWLEDGMENTS. 253 promise becomes an absolute one upon the old debt.^ If the condition ToMUNSON as teing authorities to show that if the promise was conditional, as it was in this case, it ought to be declared upon as such ; but I find nothing in those decisions to affect my opinion upon this part of the case. According to the facts of this case the conditions have been per- formed, so that the debt upon the promis- sory notes is absolute, and may be declared upon in the ordinary form. "In Tanner v. Smart, 6 B. & C. 609, Lord Tenterden, in giving judgment, says : ' The promise proved here was, " I '11 pay as soon as I can," and there was no evidence of ability to pay, so as to raise that which in its terms was a quali- fied promise, into one that was absolute and unqualified.' The whole .of that de- cision is this, that when a man acknowl- edges a debt, and makes a qualified prom- ise to pay it, you are to take it altogether, — you are not to consider as an absolute promise that whifih he makes only on a condition. Then the plaintiff cannot re- cover against him unless he can show that the condition is fulfilled, by proving the defendant's ability to pay in such case ; there is nothing which intimates that he may not declare generally on the subse- quent promise. When the condition is fulfilled the defendant becomes simply liable. So, in the case of Haydon ». Williams, I find the Court of Common Pleas expressly guarding against their giving an opinion that the plaintiff could not have recovered, in case he should have shown that the defendant was liable to pay. The court says : ' The promise here is guarded with a condition ; . . . and it is sufficient to say there is no proof of the defendant's ability so as to satisfy the condition, and make the conditional promise an absolute one.' The courts, therefore, do not mean to intimate that, the condition being performed, so as to make the promise an absolute one, the plaintiff could not have declared in the ordinary way. There are cases in which this point has occurred, in which the plaintiff has been permitted to recover upon a declaration in the ordinary form, without stating any conditional promise. One of these cases is Thompson v. Osborne, 2 Stark. N. P. C. 98, id. 3, and another is Davies v. Smith, 4 Esp. 36, where Lord Kenton intimates that, in order to pro- ceed upon such a promise, the plaintiff must prove that the defendant was of ability, and may then recover upon a, declaration stating an absolute promise to pay. On these grounds it seems to me that the plaintiffs are entitled to recover. I think there was a binding engagement between the parties, and a promise on the part of the defendant for a new considera- tion in the event of the instalments not being paid. That promise became abso- lute in the month of September, 1830 ; that is, within the six years that would sustain the promise in the declaration, and that we must take as being a promise to pay according to the tenor and effect of the notes." Aldbrson, B., also said: "I am en- tirely of the same opinion. It seems to me that there was a contract for a new consideration in 1827, which was not ful- filled iu the year 1830, when the instal- ments ceased to be paid ; then there was nothing more remaining of the contract but the simple duty of paying the promis- sory notes. On the part of Mr. Veitch, all we know is, that there has been an agree- ment, and he had nothing more to do than to perform his part of it, which was to pay the promissory notes then .in existence ; and it is not only a contract within the six years, but a contract within the six years properly stated upon the record. Then the statute of limitations is no an- swer to a breach of the contract so prop- erly stated upon the record. Upon these grounds I concur entirely in the judgment of the court." Gurnet, B., in concurrence, said : "In 1827, the defendant, who was residing abroad, being indebted to the plaintiffs, in order to gain time, engages to do certain things. In the first place, he engages to set apart a portion of his consular salary ; I Stone V. Bogers, 2 M. & W. 443 ; Thompson v. Osborne, 2 Starkie, 93 ; Davies v. Smith, i £sp. .36. 254 STATUTES OF LIMITATIOK. [CHAP. VH. is one which does not depend upon the act of either partj', as if there is " a promise to pay when able," the plaintiff under his replication is simply pat to his proof that the defendant was, at the time of action brought, of sufficient ability.'' But if the condition is one which is de- pendent upon the action of the defendant, as if he promises to pay a certain sum each year, for a certain number of years, it is onlj- incum- bent upon the plaintiff to show that the instalments were not paid, as agreed.^ In Ohio, it has been held that neither an acknowledgment, new promise, nor pai't payment after the debt is barred will revive it.' Whether this ruling was justified by the language of the statute may be doubted, but the doctrine is supported by the dicta of several cases in other States ; but the rule itself seems to have no foundation in principle, and is contrary to the actual doctrine of all the authori- ties outside of that State, from the time when these statutes were first adopted down to the present time. Indeed, it has been doubted whether an acknowledgment made before the statute has run upon a debt is supported by a sufficient consideration to render it operative to suspend the running of the statute.* But this doubt was only short- lived, and it is well settled, as previously stated, that a promise to pay, made either before or after the debt is barred, will suspend or remove the statute bar.° The new promise or acknowledgment must be shown to have been made upon a week-day, as in all those States where the statute renders contracts made upon the Sabbath void, such an acknowledgment or promise made upon Sunday would be wholly inoperative. ° in the next place, he apportions the pro- * Lord Kenton, in Davies w. Smithy ceeds of certain wines then in India ; and, ante. in the third place, Mr. Cock is to give his ' Irving v. Veitoh, ante. acceptance for £245. The plaintiffs were " Hill v. Henry, 17 Ohio, 9 willing, on these conditions, to abstain * Farley v. Kustenhader, 3 Penn. St. from exercising their right of suing ; hut 418 ; Case v. Cushman, 1 id. 241 ; Morgan they stipulate that in case of his failing in v. Walton, 4 id. 321. these conditions they shall he remitted to ^ Hazlebacker v. Eeeves, 9 Penn. St. their original right. That failure did take 258 ; Forney v. Benedict, 6 id. 225 ; Pat- place three years after, in the September of ton V. Hassenger, 69 id. 811 ; Wetham's 1830, by the non-payment of the third in- Estate, 6 Phila. (Penn.) 161. stalment of £300, and then the plaintiffs ' Haydock i>. Tracy, 8 W. & S. (Penn.) were put in the same situation as they 507 ; Clapp v. Hale, 112 Mass. 368. But were on the 1st of October, 1827. It fol- in Maryland, an acknowledgment made on lows upon this that the action is brought Sunday is sufficient, Thomas v. Hunter, in due time." 29 Md. 406 ; and in Connecticut, in Beard- In this case, it will be observed that ley v. Hall, 36 Conn. 275, while the gen- the new promise was made before the stat- eral doctrine that an acknowledgment of a ute had run ; but the court, in treating debt made on Sunday would be inopera- the question, plainly intimate that there tive was not denipd, yet it was held that is no real distinction in this respect, ex- evidence that the defendant admitted upon cept that the party may or may not, at his Sunday that a sum of money by him pre- election, declare upon the new promise, viously paid to. the plaintiff was to bs §81.] ACKNOWLEDGMENTS. 255 applied upon the note in snit was ad- missible. "The acknowledgment," said Park, J., "did not apply the money to the note; it merely furnished evidence that it had been applied. Neither did the admission itself tend to remove the bar of the statute. The bar had, in fact, been re- moved by the partial payment of the note, and the offer was simply to prove it by the partial payment of the note, and the effect, we think, was simply to prove it by the acknowledgment. We think the mere telling of the truth upon the Sabbath day in relation to a matter like this is not transacting secular business within the meaning of the statute." 256 STATUTES OF LIMITATION. [chap. viir. CHAPTER Vin. Acknowledgments in Weiting. Sec. 82. Lord Tenterden's Act. Skc. 89. Instances of Sufficient Acknowl- 83. Similar Statutes in this Country. edgments. 84. Effect of Statutes requiring a 90. Direction in a Will, to pay Writing. Debts. 85. Suificiency of. Instances. 9L Debts due from Corporations. 86. AoUnowledgment must clearly 92. Entry of Debt in Schedule, Deed, refer to the Particular Debt. &c". 87. Distinction between Absolute and 93. Sufficiency of, for the Couit, QualiKed Promises, &c. Il- except. lustrations. 94. Must be signed by the Debtor. 88. Promise, &c., must be definite. 95. Promise must bind the Debtor Amount need not be stated. personally. Conditions, Effect of. Sec. 82. Lora Tenterden's Act. — In England, the great laxitj- that existed in reference to the removal of the statute bar b}- parol acknowl- edgments, and the Strong tendency on the part of the court to relieve parties from the effect of the statutes upon the slightest proof, as well as the great temptation to perjury afforded by the rules established bj' the courts, aroused a strong public sentiment, especially in the minds of the leading lawj-ers of the country, to the necessity of some change in the statute as to the methods of proof of acknowledgments ; and in May, 1828, the statute of 9 Geo. IV. c. 14, commonly called Lord Tenterden's Act (he being the author of the statute), was passed, a()d went into effect Jan. 1, 1829. ' This statute makes a writing necessary to an effectual acknowledgment in cases under the statute of James and the kindred Irish act. Notwithstanding that the act contains a recital that various questions have arisen ag to the proof and effect of acknowledgments, it has been decided that, practically, the act is to be construed as altering the mode of proof only, not the legal construc- tion of acknowledgments or promises.^ 1 TindaIj, C. J., in Haydon v. Wil- liams, 7 Bing. 163, said : "To inquire whether, in a given case, the written docu- ment amounts to a written promise or ac- knowledgment is no other inquiry than whether the same words, if proved, before the statute, to have been spoken by the defendant would have had a similar opera- tion and e£fect." The object of the statute was and is simply to prevent fraud and perjury in proving the acknowledgment or promise, by requiring proof tliereof, about whidi there can be no question, Dickin- son V. Hatfield, 5 C. & P. 46, and to do away with the absurdity which had sur- rounded other cases arising upon loosp, indefinite, and unguarded verbal admis- sions. Shaw, C. J., in Sigoumey v. Druiy, § 82.] ACKNOWLEDGMENT IN WRITING. 257 The act enacts as follows : "1. That in actions of debt or upon the case grounded upon anj- simple contract no acknowledgment, or prom- ise by words only, shall be deemed sufBcient evidence of a new or con- tinuing 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 ben- efit thereof, unless such acknowledgment shall be made or contained bj^ or in some writing to be signed by the partj- chargeable thereby ; and that where there shall be two or more joint contractors, or execu- tors, or administrators of any contractor, no such joint contractor,, 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 hy any other or others of them : Provided always, that nothing herein con- tained shall alter or take away or lessen the efitect of any payment of any principal or interest made by anj- person whatsoever: Provided, also, that in actions to be commenced against two or more such con- ti-actors, 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 contractors, or executors, or administrators, shall nevertheless be entitled to recover agamst any other or others of the defendants by virtue of a new. acknowledgment or promise, 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 defend- ants against the plaintiff. " 2. And be it further enacted, that if anj' defendant or defendants, in any action or any simple contract shall plead any matter in abate-- ment to the effect that any other person or persons ought to be jointlj- sued, and issue be joined on such plea, and it shaU appear at the said, trial that the action could not by reason of the said recited acts or this act, or either of them, be maintained against the other person or per- sons named in such plea or any of them, the issue joined on such plea, shall be found against the party pleading the same. " 3. And be it further enacted, that 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 any other writing by or on behalf of the party to whom such payment shall be made, shall be deemed sufBcient proof of such payment so as to take the case out of the operation of either of the said statutes. " 4. And be it further enacted, that the said recited acts or this act shall be deemed and taken to apply to the case of any debt or simpla contract alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise." 14 Pick. (Mass.) 399. See also remarks of the progressive step taken iy the British of TnoMPSoN, J., in Moore v. Bank of Co- Parliament in the enactment of this statute, lumbia, in which he speaks in high praise and the good results hkely to ensue from it VOL. I. — 17 258 STATUTES OF LIMITATION, [CHAP. VIII. The main portion of this statute is given here for convenience sake, and because in those States of this country in which written acknowl- edgments are required the provisions are substantially the same as in this statute ; and while the decisions of the English courts under this statute are not controlling authorities in questions arising under our statutes, j-et they are always respected by our courts, and their doc- trines are generally adopted in the decision of similar questions, so that it becomes important that the provisions of this statute should be before us, that we may see how far the decisions of the English courts upon questions arising under it are applicable in questions arising under ours. Sec. 83. Similar Statutes in this Country. — Similar statutes have been adopted in nearly all of the States of this country. In Vermont, Massachusetts, Michigan, Oregon, Minnesota, Nevada, and Califor- nia, and the other States, the provisions are substantially the same ; that is, that no acknowledgment or promise shall be sufficient unless it " be made or contained by or in some writing signed by the party chargeable thereby," and also embodying the other provisions as to abatement, indorsements, and set-off. In Maine, the provision is the same, except that after the words "acknowledgment" or "promise" the words, "be an express one," &c., are inserted, thus excluding an implied promise. All these statutes require that the acknowledg- ment or promise shall be' signed by the person chargeable, and thus put it out of the power of the debtor to act in this respect by an agent. In Arkansas, the provision is that " no verbal promise or acknowledgment shall be deemed sufficient evidence in any action founded on simple contract," but does not restrict it to a writing signed by the debtor himself; and a similar provision exists in Nebraska ; and under these statutes an acknowledgment by an agent is sufficient. In all these statutes there is a provision that saves the effect of a part payment upon the statute bar. It will be observed that in those States where written evidence of an acknowledgment is required the provisions are practically the same as those in the Stat. 9 Geo. IV. c. 14. In all of them except Nevada the effect of a part payment is left the same as before the adoption of the provision as to written acknowledgments ; but in that State there is no saving clause in this respect, and a part payment, unless evidenced by a writing under the hand of the party to be charged, is not admissible.^ In New Hamp- shire, Connecticut, Rhode Island, Colorado, Delaware, Florida, Ken- tucky, Pennsylvania, Maryland, and Tennessee, no provision exists requiring an acknowledgment or new promise to be in writing. Sec. 84. Effect of Statutes requiring a Writing. — The effect of the provision in the various statutes requiring an acknowledgment or promise to be in writing, in order to remove the bar of the statute, 1 Wilcox II. 'Williams, 5 Nev. 206. §85.] ACKNOWLEDGMENT IN WEITING. 259 simply renders a writing necessary as a means of proof, and does not effect any alteration in the legal construction to be put upon such ac- knowledgments or promises. In the language of Tindal, C. J.,* they " merely require a different mode of proof, substituting the certain evi- dence of a writing signed bj' the party chargeable for the insecure and precarious testimonj' to be derived from the memorj- of witnesses. To inquire, therefore, whether in a given case the written document amounts to an acknowledgment or promise, is no other inquirj- than whether the same words, if proved, before the statute was enacted, to have been spoken by the defendant, would have had a similar operation and effect."^ It appears also that the words "promise" or "ac- knowledgment " in the statute mean the same thing.' The terms of a lost acknowledgment in writing may be proved and the acknowledg- ment supported by parol evidence.* Sec. 85. Sufficiency of. Instances. — Under these statutes any writing, signed by a defendant, admitting that a debt is due and un- paid, whether under a bond, deed, or simple contract, will revive the remedy upon the contract or obligation, although there is not upon its face any express promise to paj' it ; ^ but there must be upon the 1 Haydon v. Williams, 7 Bing. 16. 2 Pollock, C. B., Godwin v. CuUey, i H. & N. 373. See Moore v. Columbia Bank, 6 Pet. (TJ. S.) 86, and remarks of Shaw, C. J., Sigourney v. Drury, 14 Pick. (Mass.) 389; Dickinsons. Hatfield, 5 C.& P. 46. Where the statute requires that an acknowledgment or new promise shall be in writing, a verbal acknowledgment of the correctness of an account, although it may have the effect of making it an account stated, will not be sufficient to suspend or repeal the statute. Floyd v. Pearce, 57 Miss. 140. And in Mississippi even a written promise to pay part of a debt, with- out any promise to pay the balance, as " I am going to Aberdeen to-morrow and will send fifty dollars, which is all I can spare at present," is held not a sufficient acknowl- edgment of the debt to take it out of the statute. Eckford o. Evans, 56 Miss. 18. And in that State it is also held that from the mere fact of part payment the jury are not authorized to infer a promise to pay the rest. Smith v. Westmoreland, 12 S. & M. (Miss.) 663 ; Davidson v. Harrison, 33 Miss. 41. And in no case can a part payment that is enforced by law be treated as sufficient to remove the statute bar. Davies v. Edwards, 15 Jur. 1044. But in Fiske V. Hibbard, 45 N. Y. Superior Ct. 331, a letter from a debtor to a creditor as follows: "I am aware that I owe you, for money borrowed. As you have the figures, I wish you would, at your leisure, make out a statement of what you consider my indebtedness to you, and send it to me, resting assured that in all money matters I want to act honestly towards every- body," was held sufficient as an acknowl- edgment of whatever indebtedness actually existed at the time it was made. * Haydon v. Williams, ante. * Pollock, C. B., in Godwin e. Cul- ley, anie. ' Linley v. Bodsot, 2 Bing. N. C. 241. In Manchester a. Braedner, 107 If. Y. 346, it was held, that where one delivers to another an order on a third person to pay a specified sum to the payee, the natural import of the transaction is that the drawee is indebted to the drawer, and the latter is indebted to the payee in the sum specified, and that it was given to ■the payee as the means of paying or secur- ing the payment of his debt. Such an order, therefore, in the absence of evidence showing a different relation betw€6n the drawer and the payee is an acknowledgment in writing by the former of a debt within the statute of limitations, and continues the debt for a period of six years from its date. Such an order does not import that the debt so acknowledged is only to be paid 260 STATUTES OP LIMITATION. [CHAP. vm. face of the writing enough to warrant the implication of a promise to pay,i as if the words used are simplj' " I O U £275," that is sufficient, because from the absolute acknowledgment of a debt, un- accompanied by any qualifying observations, a promise to pay on request may be inferred.^ If, however, there is anything on the face of the instrument to repel the inference of a promise to pay, the rule expressum facit cessare taciturn applies ; no promise will be inferred, and the acknowledgment will not enable the plaintiff to ground an action thereupon. Any admission of a liability which stops short of an admission of a debt being due at the time of the making of the admission, will not suffice for the maintenance of an action, such as a letter saying, "Doubtless 1 did owe themonej^ but I have already paid it;"' or, "I admit the debt, but I have got a set-off; " or, " Tlie debt is barred by the statute of limitations." ^ If a man admits that a signature to a bill or note, or other contract in writing, is his signature, but at the same time saj's it was never worth anything, and that he was never liable upon the contract, this is no admission or acknowledgment.* If the defendant saj's, in writing, " I admit the debt," that is enough ; but if he says, " I admit the debt, but I have not made up my mind to pay," or, "I owe the money, but out of the fund against which it is drawn. To constitute an acknowledgment of a debt, such as will take it out of the stat- ute, the writing must acknowledge an ex- isting deht, and must contain nothing inconsistent with an intention on the part of the debtor to pay. Oral evidence, how- ever, may be resorted' to, as in other cases of written instruments, in aid of the inter- pretation. 1 Evans v. Simon, 9 Exch. 285. ^ Smith V. Thome, ante; Dobbs o. Humphrey, 10 Bing. 449. In Mills V. Davis, 113 N. Y. 243 ; 41 Hun, 416, it was held as against a prom- issoiy note, payable on demand with in- terest, that the statute of limitations begins to run at its date. It seems the provision of the Code de- claring that, in order to take a case out of the statute of limitations, an acknowledg- ment or promise to pay in writing, signed by the party to be charged, is necessary, but that this " does not alter the effect of a pay- ment of principal or interest," does not change the nature or effect of a part pay- ment. The old rule is recognized and con- tinued, and the payment may be proved by oral evidence. In order to make an indorse- ment upon a promissory note of part pay- ment made by the holder, without the prir- ity of the maker, competent as evidence to meet the defence of the statute of limita- tions, it must appear that it was made at the time when its operation would be against the interest of the party making it ; and so, at least, that it was made be- fore the statute could have operated. But it is a question for the jury as to- whether the payment was, in fact, .made. Upon a reference under the statute of a claim by an executor against the estate of a deceased person, which claim was founded upon a promissory note, the de- fence was the statute of limitations. The note bore indorsements of payment of interest made by the plaintiff. The plain- tiff himself and two other witnesses who were entitled under the will each to one- third of whatever was collected on the note, were permitted to testify, under ob- jection and exception, that the indorse- ments were made by the plaintiff dviring the lifetime of the plaintiff's testator. Held, that the testimony was incompetent under the statute. ' Bryan v. Horseman, 6 Esp. 81 ; Birk V. Guy, 4 id. 184. 4 Swan V. Sowell, 2 B. & Aid. 761 ; Boydell v. Drummond, 2 Camp. 161. 6 Bowcroft V. Lomas, 4 M. & S. 459. § 86.] ACNOWLEDGMENT IN WRITING. 261 I cannot tell when or how I am to pay it," or " I do not intend, or cannot afford, to pay the debt," such an acknowledgment negatives the inference of a promise to pay, and will not consequently revive the "cause of action.^ The making and signing of a promissory note bj' the debtor, and tendering it to the creditor for the amount of the debt, or in lieu of another note, but which is not accepted by the creditor, is not such a promise in writing as takes the debt out of the statute ; " nor, indeed, under any cu'cumstances can anj- paper, executed by the debtor but not delivered to the creditor, have the effect to remove the statute bar,* unless it is executed and used bj' the debtor in such a waj' as to show that he intended it as a recognition of the debt, upon the faith of which the creditor might rel}', so as to estop him from setting up the statute ; * and the insertion of a debt in a schedule of debts owing b}' an insolvent debtor, filed and sworn to by him in pro- ceedings in insolvenc}', does not operate as an acknowledgment of the debt as a subsisting liability against him so as to remove the statutory bar ; ^ and, too, the acknowledgment must be made to the creditor in person, or his agent or legal representative. Sec. 86. Ackno'wledgnient must clearly refer to the Particular Debt. — The acknowledgment, &c., in writing, required b3' these statutes, must clearly relate to the debt in suit, and must be such that a promise to pay the debt can be implied ; ° and where a letter from the debtor was relied upon, which merelj' stated, " My brother says you are intending to send to me. As I do not recollect the date or the amount of the indorsements, I would thank you to send me a statement of it. I have been expecting to visit you for some time past. After hearing from you, if I should not be able to visit you soon, I will write again," it was held not suflScient, because it did not identify the note, or amount to a promise to pay it.' In » Brigstocke v. Smith, 1 Cr. & M. 485; * Duguid v. Scholfield, 32 Gratt. (Va.) A'Court V. Cross, 3 Bing. 329. 803. 2 Smith V. Eastman, 3 Gush. (Mass.) * Richardson u. Thomas, 13 Gray 355. See also Sumner v. Sumner, 1 Met. (Mass ), 381 ; Koseoe v. Hale, 7 id. 274 ; (Mass. ) 594, where, after the debtor had Stodard v. Doane, 7 id. 387. made and delivered to the creditor a new * Wells v. Wilson, 140 Penn. St. 145. note in lieu of one already haired by the A declaration of an intention to pay a debt statute, the creditor delivered up the note is not equivalent to a promise to pay it, to the debtor again for the purpose of put- Lowrey v. Robinson, 141 id. 189. See also ting all the creditors in statu quo, it was Davis v. Noyes, 15 N. Y. Supp. 431, Wam- held that the last note did not operate as bold v. Hoover, 110 Penn. St. 9. a new promise in writing so as to remove ' Gibson v. Grosvenor, 4 Gray (Mass. ), the statute bar ; but it was intimated by 606. In Leigh v. Lithicum, 30 Tex. 100, the court that the rule would be otherwise a letter as follows, " You said something if the note had been merely delivered up about a note you have. You are apprised to the debtor for the purpose of leaving the I have an offset, &c. When I see you we question of the amount open, and not the will adjust the matter, and whatever is question of the debtor's indebtedness. due on the note I will pay," of itself, in ' Allen V. Walton, 70 Mo. 138 ; Ed- the absence of any other evidence to apply wards v. CuUey, 4 H. & N. 378 ; Merriam it to the note in suit, was held insufficient; V. Leonard, 6 Gush. (Mass.) 151. but the rule generally adopted is that, if 262 STATUTES OF LIMITATION. [CHAP. TUI. another Massachusetts case,-' the debtor wrote the creditor as follows : the writing is indefinite as to the debt in question, parol evidence is admissible to explain it, as any other latent ambiguity. In Hussey v. Kirkman, 95 N. C. 63, the intestate admitted to a third persou that he owed a note of about sixty doUars, which was just and due, and he intended to pay it if he ever got well enough. The court held this insufficient, saying : " The trouble is that no note has been produced, nor its contents shown, to which the ad- missions can be attached, so as to admit of identification. " In Faison v. Bowden, 72 N. C. 405, the testator said to the plaintiff, " I can't pay you what I owe you, but I will pay you soon, or next winter. I need what money I have now for bujld- ing, and it wOl do you more good to get it in a lump." The testator owed the plaintiff for medical services, running over a period from the beginning of 1854 to his death, in November, 1861, and the recog- nition of the debt was relied on to remove the bar as to the whole account. It. was held to be insufficient. The following expressions in a letter from the debtor to his creditor : — " You shall be paid a-s I get the money over and above my bread and meat ; " " If I get the money, I will then pay you ; " " I have acknowledged the debt to you in my letters again and again, and therefore it stands as good as if you had my bond," — have been held sufficient in view of the fact that the last expression clearly shows that the debtor did not intend to confine the creditor to the source indicated in the first expressions for payment, but intended his language to convey an unqualified acknowledgment of the debt, from which an unqualified promise to pay is fairly in- ferred. Abraham v. Swann, 18 W. Va. 274, 41 Am. Rep. 692. A statement of a debtor that he " will try to do a portion of it" will not remove the statute bar. Denny ». Marrett, 29 Minn. 361. A declaration of an intention to pay, is not equivalent to a promise to pay. Lowrey v. Eobinson, 141 Penn. St. 189. A clear and unambiguous acknowledgment of a debt as an existing obligation, consis- tent with a promise to pay, will remove the statute bar, Wells v. AVilson, 140 Penn. St. 645 ; Russ ■! ACKNOWLEDGMENT IN WRITING. 263 "Next week I shall be able to send in to C. T. a statement of my affairs. He will show you the whole of my property, and ask for a discharge. I should have done this before, but have been obliged to work for my board. I have large demands, &c., but I cannot collect them, and think I never shall ; " and it was held not sufficient to take the debt out of the statute.* A letter in which the debtor stated, " I feel ashamed of it standing so long,'' was held insufficient.^ The constant replication ever since the statute to let in evidence of an acknowledgment is that the cause of action accrued or that the defend- ant made the promise in the declaration mentioned within the six years ; and the only principle upon which it can be held to be an answer to the statute is, that an acknowledgment is evidence of a new promise, and as such constitutes a new cause of action, and supports and establishes the promise which the declaration states. Upon this principle, when- ever the acknowledgment supports any of the promises in the declara- tion, the plaintiff succeeds ; when it does not support them, though it may show clearlj' that the debt never has been paid, but is still a sub- sisting debt, the plaintiff fails.' The replication in those States where to set forth a promise to pay any sum certain. Its assurance to the creditor that "if you need or want more call for it without hesitation, and you shall have it," not stating the amount due or how much " more " would be paid on demand, does not operate as such promise as will take any sum from under the ban of the statute. " There must be a clear and definite ac- knowledgment of the debt, a specification of the amount due or a reference to some- thing by which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay." MiUev V. Basehore, 83 Penn. St. 356 ; Landis v. Both, 109 id. 621. McClellan, J., said : " This leaves for consideration, on the ques- tion whether the bar of the statute was re- moved by a written promise of defendant,the letters of October 15, 1882, and September 23, 1883, to Mrs. and Mr. Watrous, respect- ively. They are certainly not wanting in acknowledgments of the indebtedness, and are, it may be admitted, sufficiently specific as to the amount thereof. They express a desire and expectation to pay it. They evince a purpose and willingness to pay it after a time. They contain propositions looking to a settlement of it, at one time, by the conveyance of certain landed interests to the heirs of the iutestate, and, at another, through the satisfaction of a claim which' had been or would be asserted against the estate. But neither of these letters can be construed into an uncon- ditional promise to pay the debt, nor into an acknowledgment of its existence, ac- companied with an unequivocal expression of a willingness to presently pay it, from which in many jurisdictions at least, the unconditional promise required by statute might be implied. The letters do not im- port the written absolute undertaking to pay the debt required to a removal of the bar of the statute. Scott v. Ware, 64 Ala. 174 ; Minniece v. Jeter, 65 id. 222 ; Grim- ball V. Mastin, 77 id. 553." 1 In Hanneyu. Tobey, 15 Pick. (Mass.) 99, the debtor, some time after the note in suit had become due, executed an in- denture between himself and his creditors, by which he assigned his property in trust for such of his creditors as .should become parties to the indenture, and the creditors covenanted to discharge him from all claim or demand, action or right of action, for the space of seven years, upon receiving their respective portions of the property. The plaintiff executed the indenture. It was held that the indenture did not sus- pend the statute or keep the debt on foot. See also, to same effect. Smith v. Eastman, aTite. 2 Wilcox V. Williams, 5 Nev. 206. 8 Tanner v. Smart, 6 B. & C. 606. 264 STATUTES OP LIMITATION. [CHAP. VIII. a written acknowledgment is required must now specify that the acknowledgment was in writing, signed by the debtor.^ Sec. 87. Distinction between Absolute and Qualified Promises, &c. Illustrations. — When the plaintiff's declaration, as is usually the case, is framed on the original absolute promise to pay on request, any writing signed by the party within six years of the commencement of the action, showing an express or implied absolute promise to pay the debt, or satisfy the claim, will suffice to sustain the action.'^ But when the defendant's promise to pay is qualified and conditional, the con- dition must be shown to be accomplished, and the promise to have become absolute, so as to support the absolute promise laid in the dec- laration. ° The amount of the debt may be shown by parol, and need not appear upon the face of the writing ; ^ and if the defendant admits the debt, but objects to the amount claimed, the law will infer from the admission a promise to paj' what, upon investigation, shall appear to be due ; and the admission, consequently, will give rise to a cause of action, and be a bar to the statute. ° The following letters and writings have been held not to be sufficient to bar the statute : " I am in daily expec- tation of being enabled to give a satisfactory reply respecting the de- mand of Messrs. Morrell against me." ° "I will see Davis ; I have no doubt he has paid it ; if by chance he has not paid it, it is very fit it should be.'" "I have now a hope that before a week I shall have it in my power to pay a portion of the debt, when we shall settle about the liquidation of the balance."* "Plaintiff's claim, with that of others, shall receive the attention that, as an honorable man, I consider them to deserve ; it is my intention to pay them, but I must be allowed time to arrange my affairs, and if I am proceeded against, any exertion of mine will be rendered abortive."' " I give the above accounts. to you, so you must collect them, and pay yourself, and you and I will then be clear." ^° "I have hitherto deferred writing to you regarding your demand upon me in consequence of some family arrangements, through which I should be enabled to discharge your account. I have now the satisfaction to inform you that an appointment of sufficient funds has been made, for the purpose of which H. Y. is one of the trustees, to whom I have given in a statement of your account, amounting to £98 8s. Some time must elapse before the trustees can be in cash to make these payments, but I have Mr. Wy's authority to refer you to him for 1 Forsyth v. Bristowe, 8 Exch. 847. ^ Gardner v. M'Mahon, 3 Q. B. 668 ; 2 Leaper v. Tatton, 16 East, 420 ; Up- Cheslyn v. Dalby, 4 Y. & C. 238. ton V. Else, 12 Moore, 304. ^ Morrell v. Frith, 3 M. & W. 403. " Parke, B., Humphreys v. Jones, 14 ' Poynder v. Bluck, 5 Dowl. P. C. 570. M. & W. 3 ; Waters v. Earl of Thanet, 2 8 Hart v. Prendergast, 14 M. &W. 741. Q. B. 759 ; Edmunds v. Downes, 2 Or. & But see Edmonds v. Goater, 21 Law J. Ch. M. 459 ; Haydon v. Williams, 7 Bing. 290. 167 ; Irving v. Veitch, 3 M. & W. 112. '> Fearn v. Lewis, 6 Bing. 349. * Williams o. Griffith, 3 Exch. 343, i" Routledge v. Ramsay, 8 Ad. & El. and the identity of the debt may be shown 221. by parol, Abrahams v. Swann, 18 W. Va. 274. § 88.] ACKNOWLEDGMENT IN WBITIN6. 265 any further information." * "Bring the bUl; I shall be at your ser- vice." " Send me your account. If it is just, I will settle it." ^ " I hereby charge my reversionary interest, when the same shall fall into possession and be rendered available to my use, with the payment of £108 8s. 9d. to Ml-. Martin, to carry lawful interest."* "I am much surprised at receiving a letter this morning for the recovery of your debt. I candidly tell you, once for all, I shall never be able to pay you in cash, but you may have any of the goods we have at the Pantechnicon by paying the expenses incurred thereon." * An agree- ment in writing, which does not acknowledge a debt, or contain a promise to paj' the same, except upon failure to produce a certain receipt, and which expresses no consideration, has been held insuflBcient to remove the statutory bar.^ The rule in all cases being that, where a promise is conditional, there can be no recovery unless the condition is fulfilled, or there is a new and sufficient consideration for the promise ; ° and in a case of this character no promise can be implied, because there is an express denial of liability, and the debtor would certain]}- be entitled to the whole statutory period in which to produce his receipt. Sec. 88. Promise, &c., must be definite. Amount need not be stated. — In a Georgia ease,'' in order to establish a suspension of the statute, the plaiutiff introduced a letter from the defendant as follows: "Gentlemen, — In reply to j-our favor of the 22d instant, you will please to withdraw your draft of S314.37 on me, as I cannot pay for the present. As soon as I have the money, I shall remit ; " and it was held too indefinite to avoid the statutory bar as against the account, or to sustain an action. And, generally, in the case of written acknowledgments, as in parol, of which numerous illustrations have already been given, the new promise must be direct and positive ; and if it is dependent upon an acknowledgment, the acknowledgment must be unquaUfied, of a subsisting debt, which the debtor is liable and wiUing to pay.' The exact amount of the indebtedness need not be stated. If the debt is identified, the amount may be left open for future adjustment, or may be proved by parol.' The mere mention of 1 Whippey v. Hillary, 3 B. & Ad. 83 Penn. St. 356. It must he made to 400. the party seekiog its benefit, or to some 2 Spong V. Wright, 9 M. & W. 629. one authorized to act for him, and without * Martin v. Knowles, 1 N. & M. protest or claim of set-off. Teesen v. Camh- 422. lin, 1 m. App. 424. * Cawley v. FumeU, 20 Law J. C. P. 9 Hart v. Boyd, 54 Miss. 547. In Can- 197. ton Female Academy v. Oilman, 55 Miss. 5 Aldrete ». Demitt, 32 Tex. 575. 148, a letter as follows, "It would suit 6 Price V. Price, 34 Iowa, 404. my convenience to execute my note for ' Sedgwick v. Gerding, 55 Ga. 264. the balance due for rent, payable Jan. 1, 8 Senseman v. Hershman, 82 Penn. St. 1877," was held too indefinite proof of an 83 ; Otterback v. Brown, 2 McArthur acknowledgment of the debt to take it out (U. S. C. C), 541 ; Miller v. Baschore, of the statute. 266 STATUTES OF LIMITATION. [CHAP. VIII. an indebtedness, without questioning it, is not sufficient ; * nor is a mere request for delaj-, without stipulating any time for indulgence ; ^ nor is the fact that one co-debtor has suffered a judgment by default upon the joint debt to be entered against him, such an acknowledg- ment as wiU remove the statute bar against his co-debtor.' Sec. 89. Instances of Sufficient Acknowledgments. — The fol- lowing acknowledgments, on the other hand, importing a promise to pay the debt or satisfy the claim, have been held sufficient acknowl- edgments within the statutes : " I am wretched on account of j'our not being paid : there is a prospect of an abundant harvest, which must reduce your account ; if it does not, the concern must be broken up to meet it."* "The demand is not a just One, but I am readj' to settle the account ... I am not in his debt £90 ; shall be happy to settle the difference." ' " I am ready to put it out of my power to take advantage of the limitation act, and will immediately give you my note for whatever is due to you."° "Your account is quite correct, and ! that I were now going to enclose you the amount of it." ^ If, in an account rendered, there are two perfectly distinct items, not in any way connected together, and forming no part of one continuous transaction, a signed acknowledgment as to one of them will not take the other out of the operation of the statute.' Where a written acknowledgment of the debt, signed by the debtor, had been lost, oral evidence of the contents of the writing and of the making of the acknowledgment was permitted to be given, so as to take the case out of the operation of the statute.^ Sec. 90. Direction in a Will, to pay Debts. — A general direction by a testator in his will, that all his just debts shall be paid, is treated as applicable only to those liabilities that are enforceable by legal pro- ceedings, consequently it is not regarded as sufficient to operate as a waiver of the defence of the statute of limitations." But specific direc- tions to paj' certain claims upon which the statute had run, or upoft which it was running when the will was executed, would operate as a waiver of the statutory bar, which would be binding upon the executor and all others interested in the distribution of the estate to the extent and subject to the restrictions, if any, put thereon by the testator." Sec. 91. Debts due from Corporations. — Where a debt is con- tracted by an officer of a corporation, as such, or a note or other obli- 1 Hanson v. Towle, 19 Kan. 273. * Bird v. Gammon, 3 Bing. N. C. 883. 2 Cook V. Cook, 10 Heisk. (Tenn.) 664. 5 Colledge v. Horne, 3 Bing. 119. But see Bloom v. Kern, 30 La. An. Part « Gardner v. M'Mahon, 3 Q. B. 561. II. 1207, where a letter of that kind was ' Dodsou v. Mackey, 8 Ad. & El. 225. held sufficient, not only to take the note « Robarts v. Eobarts, 1 M. & P. 489 ; out of the statute as to the principal, but Eothery v. Munnings, 1 B. & Ad. 15 ; also as to the surety. Phillips v. Broadley, 9 Q. B. 744. ' Lane v. Richardson, 79 N. C. 159. » Haydon v. "Williams, 7 Bing. 163. Nor will a promise by one joint debtor re- i" Broxtou v. Wood, 4 Gratt. ( Va. ) 25 ; move the bar as to the other, Campbell v. Rush v. Fales, 1 Phila. (Penn.) 463. Brown, 86 N. C. 376. " Broxtou v. Wood, ante. § 92.} ACKNOWLEDGMENT IN "WEITIN6. 267 gation is executed by him as such, a payment or new promise made by his successors in that oflBce will have the effect to keep the debt on foot and save it from the operation of the statute ; ^ and, if the note is so executed as to render the individuals signing it personally liable therefor, the question as to whether a payment made thereon by their successors in office was not authorized by them is for the jury. Thus, in the case last cited it appeared that the parish vestry having resolved to borrow money to buUd almshouses, the plaintiff's testator advanced some of the money upon the security of a promissory note executed by the defendants and others, who were parish officers, as follows : — Llanrhos, 1st May, 1830. £185. — We promise to pay to David Jones or bearer, on demand, the sum of one hundred and eighty-five pounds, with interest thereon from the first day of May, 18-30, at the rate of £5 per centum per annum, for value received, to build twelve almshouses at Towyn. Joseph Hughes, ) y-,, , , r „ Tj r Churchwardens. I E. Roberts, j Or others for the John Evans ) < time being. ,„ „ hij ;- Overseers. I ° W. Evans, ^x_^ \ I Witness — J. Jones. Interest on this note had been regularly paid by the overseers for the time being up to 1847, and by them debited to the parish. The defend- ants had never paid any interest on the note, nor in express terms ever authorized the parish officers to pay it for them. Upon the trial before WiGHTMAN, J., at the assizes, the judge instructed the jury that the defendants were entitled to a verdict if the payment was made without their knowledge or authority. But upon a rule to set aside the verdict on the ground of misdirection, the verdict was set aside, the court hold- ing that it was a question for the jury whether or not the defendants had not constituted the churchwardens and overseers of the parish for the time being their agents, for the purpose of paying the interest.^ Sec. 92. Entry of Debt in Schedule, Deed, Sec. — Under these statutes, the entry of a debt in an inventory or schedule of the debtor's debts, to be filed in insolvency or in any proceeding, when the act is voluntary, is held sufficient to take the debt out of the statute, if the schedule or inventory is signed by the debtor, but not otherwise, unless it -is made a part of another instrument which is signed.' Such an entry would not be sufficient, even though sworn to, unless signed by 1 Jones V. Hughes, 5 Exch. 104. save the note from the operation of the 2 Eew V. Pettet, 1 Ad. & El. 196. statute, it was proved that in 1832 the ad- * Woodhridge v. Allen, 12 Met. (Mass. ) ministrator of the maker returned, under 470. In Smith v. Poole, 12 Sim. 17, au citation, an inventory and account of the action was brought on a note upon which debtor's assets and liabilities, in which this no payment had been made since 1823. note was included, and it .was held suffi- The action was brought in 1835, and to cient. 268 STATUTES OF LIMITATION. [CHAP. VIII. the debtor. The recital in a mortgage that it is made subject to a prior mortgage, if made before the statute has run thereon, does not suspend the operation of the statute and start it afresh from the date of such recital ; -^ but such a recital in a mortgage, made after the statute has run upon a previous mortgage, renews the prior mortgage and gives it a new period of life from the date of the mortgage in which such recital is contained.^ In order to operate as a renewal of a debt upon which the statute has run, the writing in which the acknowledg- ment or new promise is contained must either have been delivered to the creditor or to some person acting for him, or deposited in some public office, where it can be said to have been deposited with the intent and purpose that the creditor should rely upon it to keep his debt on foot.^ The mere fact that the debtor made a written acknowledgment of the debt, or promise to paj- it even, which he retained, and which was never delivered to the creditor, wiU. not operate to repeal the stat- ute as to such debt.' Sec. 93. SufBciency of, for the Court, except. — The question ■whether a written acknowledgment is sufficient to amount to an abso- lute promise to pay is a question for the court, and should not be submitted to the jury.^ Where, however, a document of doubtful consti'uction is put in evidence to avoid the effect of the defendant's plea, and has to be explained by extrinsic facts, the question is for the jury-* Sec. 94. Must be signed by the Debtor. — It is necessary, under the statutes in those States where the acknowledgment is required to be "in writing and signed by the party chargeable thereby*," that the instrument relied upon as an acknowledgment should bear the actual signature of the person to be charged, and the circumstance that it is in his handwriting does not give it validity.' In one case it was held 1 Palmer v. Butler, 36 Iowa, 576. gee, 10 Watts (Peuu.), 172 ; Berghaus 9. 2 Day V. Baldwin, 34 Iowa, 380. Calhoun, 6 id. 219. 8 Duguid V. Scholfield, 32 Gratt. (Va.) « MovreU u. Frith, 3 M. & W. 402 ; 803. Snook v. Mears, 5 Price, 636. * Smith V. Eastman, 3 Cash. (Mass.) ' Bayley v. Ashton, 12 Ad. & El. 493. 355 ; Hughes v. Paramore, 35 Eng. L. & In Hyde v. Johnson, 2 Biug. N. C. 776, Eq. 195. the debtor's wife wrote a letter to the 5 Routledge v. Ramsay, 8 Ad. & El. plaintiff in her husband's name and at his 221 ; Hancock v. Bliss, 7 Wend. (N. Y. ) request, proposing to pay the debt by in- 267 ; Oliver v. Gray, 1 H. & G. (Md.) stalments ; and the court held that, as the 204 ; Clarke v. Dutcher, 9 Cow. (N. Y.) letter was signed by an agent and not by 674. Where the defendant said that it the party chargeable, it was not sufficient, was impossible for him to pay then, but "It appears," said Tindal, C. J., "that that he would call on the plaintiff in the the legislature well knew how to express course of two or three weeks and give him the distinction between a signature by the all the satisfaction he could desire, it was party and a signature by his agent, and, held that the construction and effect of as the act expressly mentions the signature this was for the court, and that there was of the party only, we think it a safer con- nothing to go to the jury. Magee v. Ma- straotion to adhere to the precise words of § 95. J ACKNOWLEDGMENT IN WRITING. 269 that where the debtor wrote the entire instrument, including his name, at the top, as "I, A. B.," &c., it was a sufficient signature ; ^ but it is not believed that this would be regarded as sufficient under our statutes. But the omission of a date is not material, as it may be supplied by parol ; ^ neither is it indispensable that the name of the creditor should appear in the instrument, as that,* as well as the identity of the debt, may be supplied by parol.* Sec. 95. Promise must bind the Debtor personally. Conditions, Effect of. — The words, " unless such acknowledgment or promise are made or contained hj or in some writing signed by the person charge- able thereby," are held to be restricted to the personal liability of the debtor, and if he promises to pay out of a particular fund,° or if lie saj's that certain persons are owing him, and that the creditor may get the amount to apply on his debt if he can, — he does not thereby charge himself, or remove the statute bar so as to enable the creditor to recover the debt of him*.° In the case last referred to, the debtor wrote the plaintiff as follows : — Gentlemen, — I have hitherto deferred writing to you regarding your demand upon me, in consequence of some family arrangements, through which I should be enabled to discharge your account, and which were in progress, not having been completed. I have now the satisfaction to inform you that an appointment of sufficient funds for this purpose has been signed, of which Henry Young, Esq., 12 Esses Street, Strand, is one of the trustees, to whom I have given in a statemeiat of your account, amounting to £98 8s. 6c?. It will, however, be unavoidable that some time must elapse before the trustees can be in cash to make these pay- ments ; but I have Mr." Young's authority to refer you to him for any further information you may deem requisite on this subject. I remain, Gentlemen, your obedient servant, A. W. Hillary. LiTTLEDALE, J., Said : "I think this is not sufficient to take the case out of the statute of limitations ; and I think that the plaintiffs ought to have gone to Mr. Young for the money." the statute, and that we should be legis- the defendant had written, "I will pay lating and not interpreting, if we extended the promissory note," and it was held that its operation to writings signed, not by the onus of proving the existence of more the party chargeable thereby, but by his than one promissory note, to which the agent." See also Clarke v. Alexander, 8 writing might refer, was upon the person Scott N. C. 147. disputing the debt. And under the rule 1 Holmes ■». Mackrell, 3 0. B. N. s. that the identity of the debt may be shown 789. by parol, it was held that a promissory 2 Kincaid v. Archibald, 73 N. Y. 183 ; note, though unstamped, and for that Edmonds v. Downes, 2 Or. & M. 459 ; reason void, is admissible to show what Hartley v. Wharton, 11 Ad. & El. 934 ; was intended by the , acknowledgment. Lechmere v. Fletcher, 1 C. M. & E. 623. SpickemeU v. Hotham, Kay, 669. 8 Hartley v. Wharton, ante; Mahon u * Koutledge v. Eamsay, 8 Ad. & El. Cooley, 36 Iowa, 479. 221. 4 In Shortredge v. Check, 1 Ad. & El. 57, « Whippy v. Hillary, 5 C. & P. 207. 270 STATUTES OF LIMITATION. [CHAP. VHI. For the defence, Mr. Young was called. He stated that he was not in funds till about three months after the bringing of the present action ; and that as soon as he was so, he sent to the plaintiffs to offer them the sum mentioned in the letter. After the evidence was closed, LrrrLEDAtE, J., said: "I am of opinion that this letter is not sufficient to take the case out of the stat- ute. If the acknowledgment be accompanied by a condition, you must take the whole together. In this letter, the defendant refers to Mi-. Young.- At most it is only a promise to pay when Mr. Young is in funds." A letter in which the debtor wrote, " Though I do not deny it, I do not promise to pay it ; whether I wiU promise, and what species of payment I will make I reserve for future consideration," ^ has been held insufficient. So when a debtor wrote to his creditor among other things, that some other person was the principal debtor, and after urging him to press such person for payment, says, " I will try to do a portion of it, but in fact, the matter belongs to him exclusivelj*. After you have interviewed him, please write me the result," it was held that the statute bar was not removed as to any portion of the debt.'' 1 Morrell v. Frith, ante. 1882, reported in note, p. 695, vol. 41, ' Denny o. Mairett, Minn. 8. C. Aug. Am. Sep. §96.] ACKNOWLEDGMENT BY PART PAYMENT. 271 CHAPTER EX. Paet Payment, Acknowledgment by. Sec. 96. Effect of, generally. Sec. 105. 97. Must be made as Payment of Part of Debt. 106. 98. Must be Nothing to repel Infer- ence of Admission that more 107. is due. 108. 99. Payment by Representatives of 109. Debtor. 110. 100. Rule in Tippets ■». Heane. 101. Payment must be authorized, 111. and Toluntary. 112. 102. Rule in Linsell v. Bonsor. 103. Payment made to Agent bind- ing, when. 113. 104. Principle and Requisites of an 114. Acknowledgment by Part; 115. Payment. 116. Effect of Part Payment of Prin- cipal or Interest. Rebuttal of Implication. Inde- terminate Debt. Payment into Court. Identity of Debt. Questions for the Jury. General Rule as to Appropri- ation of Payments. 111. Oral Proof of Part Payment. Part Payment need not be in Money. Test as to what amounts to Part Payment. Part Payment by Bill or Note. Indorsements on Notes, &c. Evidence of Part Payment. Sec. 96. Effect of, generally. — In England, prior to the adoption of the Stat. 9 Geo. IV. c. 14, a part paj-ment of a debt was treated as a sufficient acknowledgment, to uphold a promise to paj-^ it, al- though the statute of James I. contained no such provision. The courts read an exception into the statute in the case of a part payment of either principal or interest ; and this exception has been expressly preserved in the Stat 9 Geo. IV. c. 14, and in all the statutes of a similar character in the States of this country except in Nevada. In Nevada, the statute contains no exception giving effect to part payment as an acknowledgment ; and it is held that a part paj'ment, unlesls evi- denced by a writing signed bj' the debtor, does not have the effect either to suspend or remove the statutory bar.' Under this provision, 1 Wilcox V. Williams, 5 Nev. 206. In Georgia, in Holland v. Chaffin, 22 Ga. 343, it was held that partial payment of a note, together with an express admission of the debt, are insufficient, unless the admission is in writing. See also Peiia v. Vance, 21 Cal. 142, and Heinlin v. Castro, 22 id. 100, to the same effect. In some of the early English cases arising under the 9 Geo. IV. it was held that a part payment of a debt would not take the balance out of the stat- ute unless there was a promise in writing. Waugh V. Cope, 6 M. & W. 824 ; Wain- man v. Kynman, 1 Exch. 118. But this doctrine was overruled by Cleave v. Jones, 15 Jur. 515, and never had any real foun- dation. Indeed, it was in defiance of the statute and its plain'intent, and there can be no qnestion l)nt that the payment of a part of a debt, nothing being said that in- dicates an intention not to pay the balance, or to repudiate the existence of a balance, 9T-7 STATUTES OF LIMITATION. [chap. IX. the part paj-raent of principal or interest takes tlie case entirely out of the statute, and such part paj'ment maj- be proved in the same manner as before the statutes were enacted.^ In such cases the part paj-ment is made an acknowledgment bj* statute, and only leaves the plaintiff to establish the fact that it was made and intended as a part payment ; whereas, where no statutory provision exists, such part paj-ment only amounts to evidence from which an acknowledgment may be inferred, and is not absolutely an acknowledgment." This proviso was enacted because the part payment of principal, or the payment of interest, stands upon a very different footing from a mere verbal promise. " A promise," observes Tindai,, C. J., " is frequently made rashly, and is always liable to misconstruction ; whereas a payment is not sapposed to be made unadvisedh'. A person may pai-t ■wiLh his words rasbl}', not so with his monej'." ' Sec. 97. Must be made as Payment of Part of Debt. — In order to make a money payment a part paj-ment within the statute, it must revives the remainder of the deht, and gives it legal vitality for a new statutory period. Jewett v. Petit, i Mich. 508 ; Aldrich v. Morse, 28 Vt. 642 ; State Bank V. Moody, 11 Ark. 638 ; Arnold v. Down- ing, 11 Barb. (N. Y.) 654; Rucker d. Frazier, 4 Strobh. (S. C. ) 93 ; Smith v. Simms, 9 Ga. 418; Ayer v. Hawkins, 19 Vt. 28. Perhaps something more than a naked payment should he shown. David- son r. Harrison, 33 Miss. 41 ; Davies v. Edwards, 15 Jur. 1044; Smith u.^West- moreland, 21 Miss. 663. But whatever may formerly have been the doctrine in this respect, there can he no question but that, if the fact of a part payment is established, it is sufficient to renew the en- tiro debt, unless the balance is repudiated or its existence denied, United States v. Wilder, 13 Wall. (U. S.) 254 ; or at least sufEoient to warrant a jury in finding a promise to pay the balance, even though the court will not therefrom draw such an inference as a matter of law. White v. Jordan, 27 Me. 370 ; Whipple v. Stevens, 22 N. H. 219 ; Illsley v. Jewett, 2 Met. (Mass.) 168; Baloh v. Onion, 4 Gush. (Mass..) 559 ; Nash v. Hodgson, 31 Eiig. L. & Eq. 555 ; Pond v. Williams, 1 Gray (Mass. ), 630 ; Ramsay v. Warner, 97 Mass. 8; Sanderson v. Milton Stage Co., 18- Vt. 107 ; Nesom v. D'Armnnd, 13 La. An. 294 ; Dyer v. Walker, 64 Me. 18. ' Cleaves v. Jones, 6 Exch. 578 ; Bank of Utica V. Ballon, 49 N. Y. 165. Part payment of the interest or principal of a debt, unaccompanied by contemporaneous qualifying acts or declarations of the payor, takes a debt out of the statute of limita- tions ; and the statute requiring acknowl- edgments to be in writing alters the mode of proof, but not the effect of acknowledg- ments or promises, and does not affect the effect of a part payment, which is a species of acknowledgment in every sense equal to one expressed in writing. Barron v. Ken- nedy, 17 Cal. 674. » EJdd V. Moggridge, 2 H. & N. 667 j HoUis V. Palmer, 2 Bing. N. C. 713. 8 Wyatt V. Hodson, 1 M. k So.. 447. In Wesner v. Stein, 97 Penu. St. > 322, Mekoitu, J., says: "Part payment of a debt within six years before suit brought is sufficient from which to infer a promise to pay ; but tho payment must be clearly proved." J5urr v. Burr, 27 Penn. St. 284; Yaw v. Kerr, 47 id. 333; PaLton V. Httssiuger, 69 id. 311. In Barclay's Appeal, 64 Penn. St. 67, Siiarswood, J., says; "There can be no more un- equivocal acknowledgment of a present, e.\isting debt, than a payment on account of it; " and according to all the authorities this is all that is recjuii-ed to lake a case out of tho statutes. Part payment does not create a new debt, but revives the old one, and the action must be predicated upon the original debt. Biscoo v. Stone, 11 Ark. 89; Egereyi). Decrew, 53 Mo. 392; Elmore u Eobinson, 18 La. An. 661. §97.] ACKNOWLEDGMENT BY PART PAYMENT. 273 be shown to be a paj-ment of a portion of an admitted debt, and paid to, and accepted b^- the creditor as such, accompanied bj' circumstances amounting to an absolute and unqualified acknowledgment of more being due, from which a promise maj- be inferred lo pa,y the remainder. If the payment was intended by the debtor to be a payment of all that was. due, the circumstance of the creditor's having received it, and treated it as a part paj-ment only, wiU not bring it within the statute.^ Part paj-ment of a debt is not of itself conclusive to take the case out of the statute. In order to have that effect, it must not only appear that the payment was made on account of a debt, but also on account of the debt for which action is brought,'' and that the pa3'ment was made as a part of a larger indebtedness,' and under such circumstances as 1 In Foster v. Dawber, 6 Exch. 853, an action of assumpsit was brought upon a promissory note for ifiSOO, dated Dec. 7, 1845, and also upon another note for the same amount, dated Jan. 20, 1846. The de- fendant pleaded that after making the notes it was agreed between J. Clark and the defendant that the latter should purchase with his own money a piece of paper marked with a 10s. receipt stamp, and should fill np and write on it thus: " Hull, February 16th, 1846. Received of R. Dawber (the defendant), the sums of j£l,080, being the principal and interest on two notes, dated December, 1845, and January, 1846, in full of all demands." That the defendant should suffer J. Clark to sign his name, and that such purchase of the paper, and such writing out and filling up, and permitting J. Clark to sign it, should be accepted by J. Clark in full satisfaction and discharge of the said causes of action. Second plea, the stat- ute of limitations. In 1835, J. Clark agreed to lend the defendant £1,000, on receiving two promissory notes of £500 each. The notes were given, and the in- terest thereupon regularly paid by the de- fendant to J. Clark, who, on receiving it, was in the habit of indorsing a memo- randum on the back of the notes. The backs of the notes being at length entirely covered, J. Clark proposed that the notes should be cancelled and others substituted, which was accordingly done, and the notes in question given by the defendant. In Feb- ruary, 1846, J. Clark expressing a wish to make the defendant a present of the £1,000, directed him to buy a 10s. stamp, and draw out a receipt for £1,000, and £80 forinter- VOL. I. — 18 est, and which having been done, and the- receipt having been signed by Clark, no- further interest was paid. J. Clark subse- quently died, having previously bequeathed- the notes in question to his executors, with certain directions as to the investment of the proceeds. It was held that the giving of the receipt was not a part payment or acknowledgment of the debt, so as to take- the case out of the statute of limitations, and that the renewal of the two notes in January, 1846, could not be considered as a promise so as to render the defendant liable, by a new promise, to pay the orig- inal notes. Tippets ik Heane, 1 C. M. & E. 252. 2 Tippets V. Heane, 4 Tyrwh. 772 ; Wainman v. Kynman, 1 Exch. 118. This- rule and its application is well illustrated in a Pennsylvania case, where the payment of the costs to the prothonotary was held' not to take the judgment out of the stat- ute, because the costs were not a part of the debt. Strawn v. Hook, 25 Penn. St. 391. 8 A'CourtB. Cross, 3Bing. 329. In Tip- pets u. Heane, an/e, Parke, B., says : " In order to take a case out of the statute of limitations by a part payment, it mu.st appear, in the first place, that the payment was made on account of a debt ; secondly, it must appear that the payment was made on account of the debt for which the action, is brought. But the case must go further, 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 2U STATUTES OF LIMITATION'. [CHAP. IX. warrant a jury in finding an implied promise to pay the balance ; ^ and if the payment was made under such circumstances as to rebut any part payment. Unless it amounts to an admission that more is due, it cannot operate as an admission of any still exist- ing debt." 1 Linsell v. Bonsor, 2 Bing. 241, where an action was brought to recover £242 11«. ; and it was proved that the defendantwithin six years, upon being called upon for in- terest, paid a sovereign, and said tliat he owed the money but would not pay it. It was left to the jury to say whether he used ithe words in earnest or in jest ; and they having found that he used them in earnest, it was held that the payment of the sov- ereign did not take the debt out of the statute. A part payment will not take a case out of the statute of limitations, unless it is expressly made aa part payment in discharge of liability for a larger amount, and with the intention of admitting a lia- bility to pay the residue. Prior to the case of A' Court v. Cross, ante, it was sup- 'posed that the mere acknowledgment of a debt was a waiver of the statute ; but tliat case decided that the acknowledgment must be such as to operate as a new prom- ise. In that case, Best, 0. J., says: "There .are many cases from which it may be col- lected that if there be anything said at the time of the acknowledgment to repel the in- ference of a promise, the acknowledgment will not take a case out of the statute." It is for the jury to say quo animo the party makes the admission. The mere act ■ ol part payment does not of itself take the ■ case out of the statute, but the payment must be made with a view to revive the debtor's liability. In the case of Bateman 'V. Finder, 3 Q. B. 574, the court put part payment on the same footing as an ac- knowledgment. And where a party revives a debt by paying it into court, but at the same time refuses to pay interest, such payment of the principal does not revive the claim for interest. Cbllyer v. Willook, 6 Bing. 513. So, where some items of ac- count are barred by the statute, a part payment by the debtor, without appro- priation to such items, will not take them out of the statute. Mills v. Fowkes, 5 Bing. N. C. 455. Those authorities show that the part payment must be made with the intention of creating a new liability to pay the debt. The acknowledgment must be such as would authorize the jury to imply from it a promise to pay, and that question should be left to them. Linsell v. Bonsor, 2 Bing. N. C. 241 ; Wakeman v. Sherman, 9 N. Y. 88 ; Chambers v. Gar- land, 3 Greene (Iowa), 322. In Harper v. Frailey, 53 N. Y. 542, it was held that it must be made by the party to be charged, or by some person authorized to make a new promise on his behalf for the residue. Where the plaintiff held notes against the defendant, which were dated more than six years before the commencement of his action, and the jury found the fact that within six years the defendant made a general payment to the plaintiff on ac- count of some one or more of the notes, or of the indebtedness manifested by them, it was held that a promise of further pay- ment must be implied ; that it was not essential that the defendant should have recollected the giving of the notes at the time of making the payment, if he was awaie of the indebtedness for wliich they were given, and acted with reference to it. Ayer v. Hawkins, 19 Vt. 26. The plain- tiff had an account against the defendants, for the payment of a portion of which a. third person was liable to the defendants. Within a year before the commencement of the action one of the defendants,, to- gether with the plaintiff and such third person, examined the plaintiff's account", and no objection was made to any portion of it, and the items for which such third person was holden were selected and paid for, and credit was given by the plaintiff for the payment, upon account, and it was held that it was sufficient to take the case out of the statute. Sanderson v. Milton Stage Co., 18 Vt. 107. In an action by an administrator on a promissory note com- menced more than six years after the date of the note, an indorsement in the hand- writing of the intestate of a payment pur- porting to have been made more than two years before the statute of limitations would attach, and six months prior to his death, held, the jury might regard it as evidence of a new promise, though there §97.] ACKNOWLEDGMENT BY PART PAYMENT. 275 such promise, it does not affect the operation of the statute. Thus, where a debtor paid to a creditor a less sum than was due, under an agreement on the part of the creditor to accept it in full, it was held that such payment did not remove the statute bar.^ If it stands am- biguous whether the payment is a part paj'ment of an existing debt, more being admitted to be due, or whether the payment was intended by the party to satisfy- the whole of the demand against him, the pay- ment cannot operate as an admission of a debt so as to extend the period of limitation.^ In some of the States, it is held that a partial was no proof other than as ahove of the time when said indorsement was actually made. Coffin v. Bucknam, 12 Me. 471. A deceased party had made in his books, within three years, an entry settling an account against the plaintifif, crediting hiin, "by amount of services rendered on account, §398.53." Among the papers of his executrix, after her death, was found a receipt given by plaintiff to the executrix for §M7.86, " on account of services ren- dered the deceased in his lifetime, " dated about six months before the bringing of this action. The plaintiff brought his action on account for services rendered as clerk and agent for the deceased against his administrators de bonis non. Held, that the entry and receipt were sufficient to remove the bar of the statute of limi- tations, which, without them, would have been an effective one to the action. Quynn V. Carroll, 10 Md. 197. An indorsement, ill the plaintiff"!! handwriting, of a partial payment on a witnessed note within twenty years, together with testimony that the defendant had since said ho would pay the balance of the principal, was held to revive a note dated more than twenty years since. Howe V. Saunders, 38 Me. 350. 1 Berrian v. New York, 4 Eobt. (N. Y. Superior Ct.) 538. 2 Waugh V. Cope, 6 M. & "W. 829 ; Burkitt V. Blanshavd, 3 Exch. 89. In Lawrence v. Harrington, 122 N. Y. 408, it was held: Conversion is not a " fraud " within the meaning of that word as used in a provision of the bankrupt act, which provides that " no debt created by fraud or embezzlement of the bankrupt or by his defalcation as a public officer, or while acting in a fiduciary character, shall be discharged under this act." The fraud intended by the law is a posi- tive fraud, or fraud in fact, as distin- guished from constructive fraud, founded upon some breach of duty. The expres- sion " fiduciary character," as used in said provision, refers to cases of technical trust, actually and expressly constituted, and does not include those which the law im- plies from the contract of the parties. Bradner v. Strong, 89 N. Y. 299, distin- guished. A promise by which a debt discharged in bankruptcy is renewed, must be express and distinct, it cannot be implied or in- ferred ; and so partial payments will not revive the debt in this respect. The rule in this respect is different from that ap- plied to the defence of the statute of limi- tations. In an action to recover for mon- eys expended for the use of a firm, of which defendant is the survivor, it appeared that the plaintiffs loaned to the defendant's firm their promissory notes. Subsequently said film filed a petition in bankruptcy, and were adjudged bankrupts, and were discharged. Two of the notes were there- after renewed by new notes, made by the plaintiffs, to the order of the defendant's firm, and by them indorsed and passed to the bank holding the original notes, and some payments were made to the plaintiffs by the defendant's firm upon the account. It was held that a new promise was to be iraplied, from the indorsement of the re- newal notes, to pay so much of the debt, but not to pay the balance represented by the other notes ; also, that the payment on account was not sufficient to authoiize a finding of a promise to pay the residue of the debt. After the discharge in bankruptcy, the defendant wrote to the plaintiffs letters containing these statements : " We do not calculate yon will suffer any loss by us ; we will do the best we can and all that is in our power to save you harmless." It 276 STATUTES OF LIMITATION. [chap. IX. payment of a note or other similar obligation does not remove the stat- ute bar as to the balance, unless it is accompanied by an express acknowledgment of a further indebtedness, or hy an express promise to pay it ; ^ but this doctrine will be found to be predicated upon the peculiar wording of the statute, or upon erroneous grounds of decision which do not generally prevail in the English, or in the great majoritj' of our own courts, — the rule generally adopted being that a general payment on account of a greater debt, unaccompanied by any qualifying acts, removes the statute bar as to the balance." Sec. 98. Must be Nothing to repel Inference of Admission that more is due. — If the payment is accompanied by declarations and statements, from some of which it is to be inferred that a further debt still remained due, and from others that all further liability was re- pudiated, it is for a jury to di"aw their own inferences from the state- ments made, and adopt or reject what portions of them thej' think fit.' If thejre is a mere naked payment of money, without anything to show on what account or for what reason the money was paid, the payment will be of no avail under the statute. If the party merely was held that these statements did not in- 471 ; Hunt v. Holly, 18 Ga. 378 ; McLaren dicate an intention to pay at all events. The plaintiffs delivered to the defendant's firm their pl'omissory note to pi'ocure It to be discounted and send to them the proceeds ; said firm received and appro- priated the proceeds to their own use. Two of the notes loaned, as above stated, were loaned to take up the note so appro- priated. It was held, the fact that said V. McMartin, 36 N. Y. 88. Where there is a running account between parties of long standing, of which the debtor has never been furnished with the items, or otherwise apprised of the entries therein, it has been held not sufficient to warrant the court in so applying a general payment as to take the whole debt out of the statute, but that the question should be left t6 the notes had their origin in the conversion of jury to iiud on account of what indebted- the proceeds of the foi-nier note did not take them out of the operation of the dis- charge in bankruptcy. The renewal notes matured in 1878, and were then paid by plaintiffs. In 1883 and 1884 work was done by defendant's firm for plaintiffs, un- der an agreement that one-half of the a;nount should be credited upon the old accounts, and credits were accordingly given. It was held that such credits might ness the payment was made. Beltzhoover V. Jewell, 11 G. & J. (Md.) 212. But while this may be the rule where there is anything attending the payment or any- « thing connected with the account itself which raises a doubt as to the application which the debtor intended should be made of the payment, yet it is not believed that the mere circumstance that the debtor was ignorant of the items of an account, be considered as payments, which would or failed to make inquiries in that regard, as a prudent man should do, will in any sense alter the legal effect of a genferal payment made thereon. ' Wainman v. Kynraan, 1 Exch. 118 ; Baildon v. Walton, 1 Exch. 617. In Blair y. Lynch, 105 N. Y. 636, it was held that a payment, such as will avert the effect of the statute of limitation as a bar, must be a conscious and voluntary act on the part of the debtor, explainable only as a recognition and confession of the existing liability. take the case out of the operation of the statute of limitations. 1 Smith V. Westmoreland, 20 Miss. 636 ; Michigan Ins. Co. o. Brown, 11 Mich. 265; Seel v. Matthews, 7 Yerg. (Tenn.) 313. 2 Semmes v. Magruder, 10 Md. 242 ; Foster v. Starkey, 12 Cush. (Mass.) 324 ; Niemceweiz v. Bartlett, 13 Ohio, 271 ; Burr V. Burr, 26 Penn. St. 284 ; Whipple V. Stevens, 22 N. H. 219 ; Barron v. Ken- nedy, 17 Cal. 574 ; Sanford v. Hayes, 19 Conn, 591 ; Bridgeton v. Jones, 34 Mo. §98.] ACKNOWLEDGMENT BY PART PAYMENT. 277 saj-s, " Place the money to my account," without specifying any account or any debt, and the creditor appropriates the payment in part liquidation of the debt barred by the statute, without the privity or assent of the debtor, this will be of no avail as an acknowledgment of the debt by the debtor ; but it will be otherwise if the appropriation is made with the privity and assent of the latter. If there is a dis- puted and an undisputed debt, or if there are two debts, — one barred b}' the statute and the other not barred, — a general payment on account will be of no avail at common law, under the statute, because it is left uncertain to which debt the payment was intended to be applied.^ But all the surrounding circumstances may be regarded to ascertain the in- tent of the debtor in making the paj'ment, and see whether there is any evidence to show to which debt he intended it to be applied.^ The par- ticular account on which the monej- was paid may be proved by subse- quent declarations or statements of the party making the payment, as well as by declarations accompanying the act of paj-ment. If, there- fore, the fact of the paj'ment is proved, an3- subsequent statement or declaration of the partj', although made after action brought, may be given in evidence, to show either that the payment was the interest of a debt due, or that it was a part payment of principal, or that it was made in reduction of some particular debt proved or admitted to be due.' The burden of establishing a part payment sufficient as to time 1 Burn V. Boulton, 2 C. B. 476 ; Milles V. Fowkes, 5 Bing. N. C. 455. 2 Nash V. Hodgson, 1 Jur. N. s. 948. 3 Waters u. Tompkins, 2 C. M. & R. 720. In Bevau v. Gehling, 3 Q. B. 742, in an action upon a promissory note to which the statute was pleaded the plaintiif gave evidence that the defendant had paid five shillings on account of the note. He then offered to prove that the defendant, on a subsequent occasion, admitted orally that he made such payment on account of the note ; and it was held that such evi- dence was properly admissible. In the cases of WiDis V. Newham, 3 Y. & J. 518, and Bayley v. Ashton, 12 Ad. & El. 493, oral evidence of part payment as an acknowl- edgment was held insufficient; but in Waters v. Tompkins, 2 C. M. & E. 237, part payment having been proved other- wise than by admissions, it was held that oral declarations were receivable to show that the payment, when made, had been appropriated to the debt in question. Moore u. Strong, 1 New Gas. 441, and Trentham v. Deverill, 3 id. 397, also show how far evidence of this kind is admissible to support or explain other proof of a pay- ment. In the subsequent case of Maghfee ■,'. O'Neil, 7 M. & W. 631, where the de- cision in Willis v. Newham, aute, was adhered to, Lord Abingbk, C. B., said : " If this question were res Integra, I should certainly say that the mode of payment of principal or interest was left by Lord Tenterden's act to be proved as at com- mon law. But we are not sitting here as a court of error. . . . My impression, how- ever, is, that the act of Parliament has been pressed beyond its intention." And Pakke, B., referring to Willis v. Newham, ante, and Bayley v. Ashton, ante, said ; " My feeling certainly is, that those deci- sions have gone too far ; but sitting as we do, with a co-ordinate jurisdiction only, we cannot overrule the judgment of the Court of Queen's Bench." He intimated, however, that the plaintiff might, in a. fresh action, bring error ; and he added : " If it «omes before us in that shape, I shall then hold myself fully at liberty to consider it independently of the cases." And the case of Bevan v. Gehling, ante, which was decided subsequently to all the preceding cases, adopted the doctrine of Waters v. Tompkuis, ante, and Bank of Utica V. Ballou, 49 N. Y. 155. 278 STATUTES OF LIMITATION. [CHAP. IX. and other circumstances to remove the statute bar is upon the plaintiff.* Sec. 99. Payment of Representatives of Debtor. — In New York it is held that under the code, as before, part payment does not take a debt out of the statute, unless made under such circumstances as to warrant the inference that the debtor therebi' recognized the debt, and signified his willingness to pay it. Thus, payment by an assignee, ill trust for the benefit of creditors, does not take the case out of the statute as to the debtor, except upon au express authorization by him ; and any authority to the assignee to pay part of it is a recogni- tion by the debtor on the day when the authority is given, and not on tlie subsequent da}' of paj-ment ; and in a case where the assignment was before the bar had run and authorized paj-ment of all debts for money borrowed, it was held that the statute ran against the debt from the day of the assignment.^ From what has been said, as well as upon principle, it ma}- be said that a part paj'ment, except in those States where by statute it is expressly given effect to, as before stated in this section, has no greater effect than any other unqualified acknowl- edgment, and, consequentlj-, must be connected both with the parties and the claim in suit, by sufficient evidence.' Sec. 100. Rule in Tippets v. Heane. — In the case first cited in the preceding note, the plaintiff proved bj' a witness that he, by the direction of the defendant, paid to the plaintiff £10 within six j'ears ; but the witness was unable to say upon what account the mone}' was paid, or to give anj' evidence beyond the mere fact of having paid the money by the defendant's direction. The judge left it to the jury to say whether the money was paid on account of the debt in suit ; and also observed to them, that no other account between the parties was shown 1 Biggs V. Roberts, 85 N. C. 451. In Kelly, 67 id. 78 ; Henly v. Lanier, 75 id, this case, the court held that the obstruc- 172 ; Faisson v. Bowden, 72 id. 405. Tlie tion of the statute of limitations may be new promise which will revive a debt ea- removed by an act of partial payment, tinguished by bankruptcy must be distinct proved to have been made at a time com- and specific ; and a mere acknowledgment mencing from which the prescribed limi- of the debt, though implying a promise to tation would not have expired at the pay, is not sufficient. It was held by the beginning of the action ; but the burden is Supreme Court of Massachusetts that even upon the plaintiff to show that the partial a payment of interest or principal indorsed payment was made at such a time as to on the note by the debtor himself is insuf- save the debt from the operatioii of the ficient to warrant a jury in inferring a new statute. An unaccepted offer to discharge promise to pay the residue of the debt, the bond by a conveyance of land is not Merriam v. Bayley, 1 Gush. (Mass.) 77 ; such a recognition of a subsisting liability Savings Inst. v. Littlefield, 6 id. 210. as in law will imply a promise to. pay the 2 piekett v. King, 34 Barb. (N. Y.) debt. In Fleming i». Hayne, 1 Starkie, 193. See also, to the same effect, Eich- 370, Lord Ellenbokough instructed the ardson v. Thomas, 13 Gray (Mass.), 381 ; jury ■ "You ought to be satisfied that the Roosevelt v. Marks, 6 Johns. (N. Y.) Ch. defendant made a distinct, unequivocal 266. promise to pay before he is placed again in 3 Tippets v. Heane, 1 C. M. & R. 253; the responsible situation from whirh the Bateman v. Boulton, 2 C. B. 476 ; Wain- law has discharged him. " See also Green man v. Kynnian, 1 Exch. 118; Mills o, V. Greensboro, 83 N. C. 449 ; Fraley v. Fouke, 4 Bing. N. C. 76. § 100.] ACKNOWLEDeMENT BY PART PAYMENT. 279 to have existed at the time when the paj-ment was made. The jur}^ hav- ing found a verdict for the plaintifl", the Court of Exchequer set it aside, on the ground that there was no evidence from which the jury were war- ranted in finding that by the payment the defendant admitted that more was d.ue ; in other words, that there was no evidence that the defendant intended it as a part payment of a greater debt. In another English case,* it appeared that the plaintiff, an attorney, had done professional business of various kinds for the defendant in 1827 and several subse- quent years. In Juh', 1832, the defendant having been a witness on a lunacy inquirj-, in which the plaintiff was concerned as solicitor, the plaintiff wrote to him to ask what were his expenses on that occasion. The defendant, in reply, requested the plaintiff to allow what was usual, and place the same to his (the defendant's) account. In March, 1833, the plaintiff wrote to the defendant, informing him that the sums allowed were £2 2s, and 10s. 6d., enclosing receipts for those sums for the de- fendant's signature, and concluding, " I will give you credit for the sums in my account against you, agreeably to j'our note of the 21st July last." The defendant returned the receipts signed by him, and the £2 2s. and 10s. &d. were paid to the plaintiff on the production of those receipts. In 1838, the plaintiff delivered to the defendant a bill of costs, amounting to £289, the first item being in 1827, and the two last in 1830 and 1831. These two were charges for £3 and £5 cash lent ; the rest of the bill was for professional business. The court held that the letters given in evidence did not sufficiently show that the money paid was paid in part satisfaction of the debt in suit, to remove the statute bar. Lord Abinger, C. B., said : " There have been several cases in which it has been considered, after much discussion, and adopted by all the courts, that the payment must appear, either by the declarations or acts of the party making it, or by the appropriation of the party in whose favor it is made, to be made in part payment of the debt in question : if it stands ambiguous, whether it be part payment of an existing debt, or payment generally, without the admission of any greater debt as due to the party ; if it may have been made by the party paying in reduction of an account due to himself, or intended to satisfy the whole of the de- mand against him, — then it is not sufficient to bar the statute of limita- tions. And we think it does not satisfactorily appear, from the letters given in evidence in this case, that the defendant admitted that there was any existing account against him, more than the sum he was pay- ing ; all that he admits is, that the money, when received, is to be ap- plied in discharge of the account which the plaintiff had against him ; but there is no distinct admission that that was an existing debt of which that was a payment in part. We think, therefore, that the case falls within the principles of the decisions in this court, and also in the Court of Common Pleas, and that the rule must be made absolute to enter a verdict for the defendant on the plea of the statute." And the rule adopted in this case is generally followed in this country.^ 1 Waugh V. Cope, 6 M. & W. 824. ^ Hodge v. Manley, 25 Vt. 210 ; Arnold 280 STATUTES OP LIMITATION. [chap. IX Sec. 101. Payment must be authorized and voluntary. — Not only is it necessary that the debt must be identified, and the payment shown to be a part payment, but it must also be unaccompanied with any decla- rations or circumstances that rebut the inference of a willingness and intention on the part of the debtor to pay the balance ; ^ and it must have V. Downing, 11 Barb. (N. Y.) 554. The court cannot imply a promise, so as to take a contract out of the operation of the stat- ute of limitations, as an inference of law, from the mere payment of a part of the debt ; but the evidence should be submitted by the court to the jury, with proper in- structions; White V. Jordan, 27 Me. 370. And if it is shown, or the jury find, that the payment was made by the debtor, and was intended by him as a part payment of a greater debt, it is sufficient, as a part pay- ment is of itself an admission of the exist- ence of the debt, and an implied promise to pay the balance, unless accompanying circumstances or declarations negative the admission. Burr u. Williams, 20 Ark. 171. A part payment to stop the statute must be such as admits the existence of a greater debt, Prenatt v. Eunyon, 12 Ind. 174 ; and must appear to be a payment made on ac- count of the debt for which the action was brought. And it must further appear that the payment was made as part payment of a larger debt, and that it was voluntary on the part of the debtor ; and it must occur under such circumstances as are consistent with an intent to pay such balance. Arnold V. Downing, 11 Barb. (¥. Y. ) 564. Evidence of a want of consideration for a note sued upon is not admissible to dis- prove a partial payment indorsed thereon, and relied upon by the holder to save the statute of limitations. Dividson w. Delano, 11 Allen (Mass.), 523. But an intention that the payment should be a part payment must be shown either by the debtor's decla- rations, acts, or the circumstances. The question as to when the payment became effective is also to be gathered from the cir- cumstances. Th\is, where a debtor does work for his creditor, at different periods, in payment of his indebtedness, and the account for such work is stated, and al- lowed by the parties as a payment, the aggregate amount of the account will be a payment as of the date of the statement and allowance, and not as of the dates of the several items of the account, in . the absence of any agreement to that effect. Borden o. Peay, 20 Ark. 293. Eastman, 3 Cush. (Mass.) Crawford, 8 Gratt. (Va.) 1 Smith V. 355; Bell 110. Under the La. Code, a widow is not liable i'A solido with the surviving partners of her husband on a firm note, even where she has accepted the succession without benefit of inventory ; payments, therefore, made by them, do not interrupt the run- ning of the prescription in her favor. Henderson c. Wadsworth, 115 U. S. 264. The holder of a note threatened to sue the surety unless a payment was made at once. The maker, in the holder's presence, handed money to the surety, and the sure- ty handed it to the holder. It was held that the payment was to be deemed the surety's. Green v. Mon'is, 58 Vt. 35. While the bankrupt act was in force, an assignee in insolvency proceedings under the State law, under order of court made a payment on a note of the insolvent. It was held that this payment did not sus- pend the running of the statute. Benton V. Holland, 58 Vt. 533. Part payment, within six years, of a book account with an express verbal promise to pay the bal- ance takes the balance out of the bar of the statute. State v. Corlies, 47 N. J. L. 108. If the holder of a note draws an order on a surety on it, and the order is paid, this is a payment on the note which, as to such surety, takes the case out of the bar of the statute. Long v. Miller, 93 N. C. 233. Payments made by the maker of a note after its maturity do not suspend the running of the statute in favor of the sure- ties. Walters v. Kraft, 23 S. C. 678 ; s. 0. 56 Am. Rep. 44. Part payment does not stop the running of the statute as to debts arising out of different transactions from that on which the part payment was made. Compton i'. Johnson, 19 Mo. App. 88. If an indorsement of payments on a note is relied on to take the case out of the bar of the statute, plaintiff must prove when the payments were made. Loewer V. Haug, 20 Mo. App. 163. Part payment of a trustee, from the proceeds of a trustee sale, of part of a § 101.J ACKNO"WLEDGMKNT BY PART PAYMENT. 281 been made bj- the debtor in person, or by some one authorized by him, to malie a new promise on his behalf.^ And a payment made by a third person, without authority from the debtor to make it, cannot remove the statute bar, because it does not implj' an}^ acknowledgment of the debt hy the debtor.'' Under this rule, it is held that a partial payment bj' an assignee for the benefit of creditors will not remove the bar as to as requested, who promised to and did sub- sequently make a payment ; this he re-' ported to the surety, who in response stated that it was all right. In an action upon the note, it was held that these facts did not show an authority conferred upon the principal to make a payment as the agent of the surety, so as to take the case as to the latter out of the statute of limitations; also that they failed to establish a ratification of the payment. Winchell v. Hicks, 18 N. Y. 558 ; First Nat. Bk. V. Ballou, 49 id. 155, distin- guished. 2 Smith V. Coon, 22 La. An. 445 ; Eich V. Niagara Savings Bank, 3 Hun (N. Y.), 481. Where a payment is made by an agent without authority, and the principal afterwards assents thereto, he is bound by it, and it has the same effect as though made by himself. First National Bank of Utica V. Ballou, 49 N. Y. 166 ; but if the debtor does not assent thereto, he is not bound. Harper v. Frailey, 53 N. Y. 542. A part payment made by the wife is not sufiBoient, unless she had authority. Butler V. Price, 116 Mass. 578. A promissory note for $1,000, made by H., and payable to the order of T. ninety days after date, with T. and M. as indorsers, was discounted at a bank, and, not being paid at maturity, was duly protested. The maker of the note failed, and made an assignment of his property. Soon after the note became due,^ T. paid one-half the same to the bank. The assignees of the maker of the note having made a dividend of nine per cent, and having paid T. $90 to be applied on this note, kept half, and gave the other half to the bank on the note. The cashier, upon being informed of the above facts, in- dorsed $45 on the note as paid by T. M. paid the bank the amount due on the note, and sued T. upon it. Held, that the pay- ment of $45 by T., which was made within six years of the commencement of the action, took the note out of the statute of limitations. Miller v. Talcott, 46 Barb. (N. Y.) 167. debt secured by the deed of trust, does not arrest the running of the statute in favor of the debtor on the residue of the debt. Leach v. Asher, 20 Mo. App. 656. In a Nebraska case, taxes were levied and col- lected for interest on municipal bonds, and payments were made accordingly. It was held that such payments took the bonds out of the bar of the statute. School District v. Xenia Bank, 19 Neb. 89. A part payment cannot give vitality to a void promise to pay. Miner v. Lorman, 56 Mich. 212 ; but payment and accep- tance of interest on a note stops the run- ning of the statute. De Koslowski v. Yes- ler, 2 Wash. 407. 1 Harper v. Frailey, 53 N. Y. 442 ; Smith V. Coon, 22 La. An. 445. A pay- ment by one as tutor for an estate he is administering both as curator and tutor interrupts the running of the statute in favor of the estate. Succession of Ducker, 10 La. An. 758. If a surety makes a pay- ment upon the note as agent of the prin- cipal, it interrupts the statute as to him, unless he discloses the character in which he makes the payment at the time. Holmes V. Durrell, 61 Me. 201. But a payment by the principal does not renew the note as to aj surety, unless he is a party to such payment. Huntel- v. Robertson, 30 Ga. 479. In Galpin v. Barney, 37 Vt. 627, a payment made by an agent after his agency had terminated, was held inoperative to remove the statute bar. In Littlefield v. Littlefield, 91 N. Y. 203, it was held that while a debtor may confer authority upon another to make a payment for him which will be efifectual as against a plea of the statute of limitations, the authority should be clearly established. Thus, one of three makers of a joint-and- several promissory note, who in fact signed ' it as surety, upon being applied to. for pay- ment, requested the payee to tell the prin- cipal that he must make a payment there- on, and that he (the surety) said so. The payee made the statement to the principal 282 STATUTES OF LIMITATION. [chap. IX. the assignor ; ^ nor will the paj-ment of a judgment obtained against a debtor b}' default renew the debt as to the balance ; ■' nor does the payment of a dividend in the Orphans' Court by an administrator pre- clude him or his successor in the office from pleading the statute as to the balance ; ' nor will any compulsory payment have the etfect to re- move the statute bar. Thus, in a Louisiana case * during the late civil war, the debtor was compelled to paj' a debt due to the plaintiffs to a receiver of the Confederate States, which was paid in an unlawful cur- rencj'. It was held that such payment did not interrupt prescription on the note. Nor will a part payment by an administrator, under a surro- gate's decree, take the debt out of the statute as to the residue ; ^ nor a payment by one partner upon a partnership debt, after the partnership is dissolved. ° Nor does a part payment derived from a collateral security, without the debtor's assent to it as a payment, operate to remove the statute bar ; ' and although in some of the cases ' it is inti- 1 EooseTelt v. Marks, 6 Johns. (S. Y. ) collect the same and apply the proceeds Ch. 266 ; Pickett v. Leonard, 34 N. Y. 175 ; Pickett v. King, 34 Barb. (N. Y. ) 193 ; Barger v. Durain, 26 id. 68. Holding a contrary doctrine was overruled by the last-cited case. Davies v. Edwards, 7 Exch. 22 ; Read v. Johnson, 1 R. I. 21 ; Mixrienthal v. Mosler, 16 Ohio St. 566 ; Roscoe 0. Hale, 7 0-ray (Mass.), 274; Stuart B. Foster, 18 Abb. (N. Y.) Pr. 305 ; Stoddard v. Doane, 7 Gray (Mass. ), 387 ; Richardson v. Thomas, 13 id. 381. 2 Goodwin v. Buzzell, 35 Vt. 9. » Miller v. Dorsey, 9 Md. 317. * New York Belting Co. v. Jones, 22 La. An. 530. ' Arnold v. Downing, 11 Barb. (N. Y. ) 554 ; and a partial payment by an admin- istrator upon a debt already barred does not remove the statute bar as to the bal- ance. McLaren v. Martin, 36 N. Y. 88. But the rale would be otherwise as to a payment before the statute has run. Heath u Grenell, 61 Barb. (N. Y.) 190. « Graham v. Selover, 59 Barb. (N. Y.) 313. But in Missouri a part payment by one partner after dissolution, five years before suit brought, takes the debt out of the statute. McClurg v. Howard, 45 Mo. 365. So also in Connecticut. Bissell v. Adams, 35 Conn. 299. ' Harper v. Fairley, 53 N. Y. 442. In Brown v. Latham, 58 N. H. 80, 42 Am. Rep. 568, the debtor at the time he exe- cuted the note in suit, left certain notes and accounts in the hands of the payee as collateral security, and authorized him to upon the note. The payee collected some of the notes and accounts after more than six years from the date of the note, and applied the amount upon the note. lu an action upon the note brought more than six years after its date, the statute of limi- tations was pleaded, and the plaintiff .set up the receipt of the money upon such notes and accounts as a part payment. But the court held that the application of the money so collected upon the note without notice to the payor, could not oper- ate as a part payment suflScient to remove the statute bar. Stanley, J., said : " Assuming for the purposes of this case that the plaintiffs receipt of the proceeds of the collateral security, and his applica- tion of them in part payment of the debt, were in every sense legal and right, there are many cases in which the creditor's le- gal receipt and application of a payment do not .show a new promise of the debtor. Mills V. Fowkes, 5 Bing. N. C. 455 ; Nash V. Hodgson, 6 De G. M. & G. 474; Burn v. Boulton, 2 0. B. 476 ; Bank v. Wooddy, 10 Ark. 638 ; Wood v. Wylds, 6 id. 754 ; Pond V. Williams, 1 Gray (Mass.), 630; Walker v. Butler, 6 El. & Bl. 506. " But such payment need not be made by the party himself. It may be made by an agent duly authorized for that purpose, and payment so made will be as effectual as if made by the principal. But it is not enough that the agent is authorized to make the payment ; his authority must enable him to bind the principal by a prom- 8 Porter v. Blood, 5 Pick. (Mass.) 476. § 101] ACKNOWLEDGMENT BY PAKT PAYMENT. 283 mated that a sale of colUterals made within a reasonable time after they are deposited with the creditor, and the proceeds applied upon the debt, may operate as a part payment at the date of the receipt of such ise to pay, and such authority cannot be im- plied from the bare authority to make the payment. Winchell v. Hicks, 18 N. Y. 558. " So it is settled by numerous authorities that a payment by assignees in bankruptcy or insolvency does not take a case out of the statute. Roscoe v. Hale, 7 Gray (Mass.), 274 ; Stoddard v. Doane, id. 387; Pickett V. Leonard, 34 N. Y. 175 ; Eoose- velt V. Mark, 6 Johns. Ch. (N. Y.) 292 ; Davies v. Edwards, 7 Exch. 22; 1 Sm. Lead. Gas. 869, 890. And this is upon the ground, not that the payment was not authorized, but that the authority did not extend to binding the party by an acknowl- edgment of the debt and a promise to pay it. " What was the contract between these parties, and what was its legal effect ? The defendant placed in the plaintiff's hands the notes, accounts, and chattels, as collateral security for the note in suit. He authorized the plaintiff to collect and convert them into money, and apply the proceeds in payment of the note. He, in fact, made an assignment of that part of his property for the payment of the plain- tiff's debt. He was the assignor, the plaintiff the assignee ; and it is the same in principle as if he had made an assign- ment of all his property for the benefit of all his creditors. This was the whole ex- tent of his contract, aiid the limit of the plaintiff's authority. The plaintiff's right, in this case, to receive the proceeds and to apply them in part payment,. and his ex- ercise of that right within six years of the date of the writ, were neither a promise made by the defendant within that time to pay the residue of the debt, nor an ac- knowledgment made by the defendant within that time of his liability and willing- ness to pay the residue, nor evidence from which it can be inferred that within that time the defendant made, or intended to make, or was understood to make, such promise or acknowledgment. What the de- fendant did in 1862 was an acknowledg- ment of a liability and a promise to pay at that time, but it has no tendency to prove that he afterwards made such promise and acknowledgment, or authorized them to be made. The placing of the security in the plaintiff's hands was of no greater foi-ce or effect than the giving of the note itself. It was not understood or intended to be a fu- ture promise, or a future acknowledgment of a future liability and a future willingness to pay ; nor is there any evidence of knowl- edge on the part of the defendant of the collection or application of the money upon the note, or of any information in regard to it, from the date of the note in suit un- til this suit was brought, so that the de- fendant's assent to the indorsement cannot be presumed. How then (fan it be said, that the indorsement relied on by the plain- tiff is evidence of an acknowledgment and a willingness to pay, from which a promise to pay the balance can be implied ? How can the assent of the defendant be pre- sumed, when he had no knowledge ? How can such payment be treated as part pay- ment of a greater debt ? What is there to show that the defendant did not under- stand, when the collateral was placed in the plaintiff's hands, that it was not suffi- cient to satisfy the principal debt ? If no promise can be implied from a payment by assignees in bankruptcy, or in insolvency, or in case of a voluntary assignment, cer- tainly none can be implied from the facts disclosed in this case. When the defen- dant placed the collateral in the plaintiff's hands, he conferred upon him authority only to collect and apply the proceeds upon his note. He made the plaintiff his agent for that purpose alone. He set apart so much of his property and placed it in the plaintiff's hands as security for his debt. The plaintiff can stand no better than if the collateral had been placed in the hands of a third party, with authority only to collect and apply the proceeds on the plaintiffs debt. Under such circumstances the application could not be treated as a payment from which a new promise could be implied, for the obvious reason that the agent's authority did not go to that ex- tent. If the payment by the agent under such circumstances is such that a new promise may be implied from it, then the principal is bound by the act of the agent beyond the scope of his authority." 284 STATUTES OF LIMITATION. [OHAP. IX. proceeds, j'et this doctrine is believed to be fallacious, and rests upon the mistaken notion that the creditor is thereb}' made an agent of the debtor for the collection or sale of such collaterals, ignoring the circum- stance that the creditor cannot be made the agent of the debtor to such an extent as to make an act done by him, operate as a new promise to himself, without which ingredient or element a payment cannot operate to remove the statute bar ; and according to the later cases it seems that the question as to whether the creditor exercises diligence or not, in the sale or collection of the collaterals, has no influence upon the question of part payment, as the statute can, in any event, only be sus- pended by some act of the debtor, or some person authorized bj' him, from which a new promise may be inferred, and in this view the suspen- sion of the statute could onlj' be claimed from the time when such collaterals were deposited with the creditor.^ In the last named case, Stanley, J., said, " The plaintiff relies upon some authorities which recognize the doctrine that a debtor's giving collateral securitj-, and the creditor's application of the proceeds of it ■within a reasonable time are evidence of a new promise made at the time of its application. The qualification of a reasonable time relieves the doctrine of a degree of in- justice, but furnishes no sound foundation. It signifies that the doc- trine is based upon the creditor's authority to receive the proceeds of the security in payment of the debt within a reasonable time ; but the creditor's lien upon the pledged property, and his authority to appropri- ate the proceeds, are not restricted in that way. He is authorized to receive the proceeds after a reasonable time and apply them to the debt; but what he receives after the expiration of a reasonable time, is as much a payment as what he receives before, and his authority in the former case is as clear as in the latter. His authority in both cases is to receive payment out of the proceeds. The foundation of the doctrine of a new promise of the debtor, within a reasonable time, supposed to exist in a limited authority of the creditor to receive payment, dA-ived from collateral security within a reasonable time wholly fails. There is a material difference between receiving a payment and making one. The plaintiff's authority was not to make a payment of the proceeds, but to receive them in payment, and whether what he did was receiving a payment or making one, it was not done by the defendant or by his authority, within six years of the date of the writ, and it is immaterial ■whether it was done by the plaintiff within a reasonable time. Author- ity given to the plaintiff by the defendant to receive the proceeds of the security within or bej'ond a reasonable time, is no evidence of author- ity given him to hind the defendant by a new promise or acknowledg- ment. If the plaintiff 's receipt of payment of part of the debt from the security within the six years, was, for some purposes, a payment made by the defendant, it was not made under such circumstances that his promise to pay the remainder can easily be inferred from it." But if the debtor himself should sell or collect any of such collaterals, and pass ' Brown o. Latham, ante. § 103.] ACKNOWLEDGMENT BY PART PAYMENT. 285 the proceeds over to the creditor, such act would amount to a part pay- ment sufficient to remove the statute bar, because from such act a new promise could fairly be raised,^ and such also would be the case if a third person authorized by the debtor to sell collaterals and make such application, should hand over the money to the creditor, received from such collaterals, because, unless his authority had been previously re- voked, he would be authorized to make the payment, with all the legal consequences which could be implied therefrom. If, by an agreement between the parties, a third person is to pay a part of a certain debt, and the creditor consents to accept him as debtor to that amount, it is treated as a payment at the time when the agreement is entered into, and the statute begins to run again from that date, although the mone}' is not in fact paid until some time afterwards ; ° but where a third party agrees with the debtor to assume the payment of a note, and the payee does not accept him as payor in lieu of the original debtor, the statute is not interrupted by a payment made by such third party, until pay- ment is actuallj' made.' Sec. 102. Rule in Linsell V. BoaBor. — In an English case,* the defendant had given a sum of money to an agent, with instructions not to pay it to the plaintiff unless he would receive it in full of the debt ; but the agent disregarded the instructions, and paid the money, and took a receipt for it on account. The court held that the payment under these circumstances could not be held as a part payment so as to defeat the statute, because there was no intention on the defendant's part to admit his liability for the residue of the debt, and that, the agent having exceeded his authority, his act could not bind the defendant. A payment made upon a note by the sale of collaterals, deposited with the creditor by the debtor at the time a note was given, will not operate to suspend or defeat the operation of the statute, even though it is evi- dent that an immediate sale of the collaterals was not contemplated by the parties.^ Generally it may be said that the payment or acknowl- edgment was made by the defendant, and also that it was made by him in the capacity in which he is sued ; as, in an action against an executor or administrator, if it is sought to take the case out of the statute by reason of a part payment made by him, it must be shown to have been made by him in his representative character.' So, too, the payment must have been such as was binding upon the plaintiff, and must have been made to the holder of the security, or some person by him authorized to receive it. Sec. 103. Payment made to Agent binding, when. — A payment made to an agent of the creditor is sufficient ; ' and upon principle, if the creditor ratifies the payment to a third person, although such person had no authority to receive it for him, it binds him, and is 1 Whipple V. Blaokington, 97 Mass. » Lyon v. State Bank, 12 Ala. 508. .yg Laraaon v. Lambert, 12 N. J. L. 255 ; 2 Butts V. Perkins, 41 Barb. (N. Y. ) 509. Scholey v. Walton, 12 M. & W. 616. « Cookfield V. Farley, 21 La. An. 521. ' Edwards v. Jones, 1 K. & J. 534 ; * Linsell v. Bonsor, 2 Bing. N. C. 241. Evans v. Davies, 4 Ad. & El. 840, 286 STATUTES OP LIMITATION. [chap. IX. operative to remove the statutOT}' bar. In Nevada, it has been held that a new promise must be made to some person authorized to receive it, and that a remittance of money to a stranger to the debt, to pay it over and have it applied on the debt, is not sufficient.^ In any event, in order that a payment made to a third person shall operate as a pay- ment to the principal, or that a payment made by a third person shall operate as a payment by the principal, it must be shown that the per- son receiving or making the payment was an agent for that purpose, or that his acts were understandingly ratified by the principal ; and, unless the evidence to that end is legally sufficient, the question should not be submitted to the jury." 1 Taj'lor 0. Hendrie, 8 Kev. 243. See also Fletcher v. Uiidike, 3 Hun (N. Y.), 350, where a claim presented by a wife twenty-two years after the receipt by her deceased husband of the avails of her sepa- rate estate was held to be barred, and that a promise to pay the same, made to any person other than the wife or her duly authorized agent, would not operate to remove the statutory bar. 2 In Harding v. Edgecumbe, 6 H. & N. 872, the defendant, in order to obtain money, gave a note to H., a customer of the plaintiffs, who were bankers. H. in- dorsed the note to the plaintiffs on obtain- ing the money which he was' debited by them. The defendant was debited with the money by H., and H. had paid the interest on the note to the plaintiffs within six years ; and upon this proof it was claimed that the statute was saved in favor of the plaintiffs. But the court held that there was no proof that H. was agent for the defendant for the purpose of paying the interest, and nonsuited the plaintiffs, and this judgment was sustained in Ex- chequer. Upon this question Maktin, B., said: "I think this is a very clear case indeed. The declaration is on a promissory note by the defendant, pay- able to the order of John Hamlyn, and I have no doubt that in one sense Hamlyn was the agent of Edgecumbe for the pur- pose of getting this money; that is, Edge- cumbe was the patty who wanted the money, and he gave Hamlyn this promis- sory note to enable him to raise it, and thereupon he dealt with it, as I have no doubt Edgecumbe meant him to deal with it; he went to a bank to get the money. Therefore, he was the agent for that pur- pose, but I apprehend, on the evidence, for that purpose alone; that all he did was as a man who went to the bank and got a promissory note discounted; and the par- ties to that note, other than himself, would be responsible' only on an express contract, and that contract was the prom- issory note; and I have no doubt there is a. legal liability on Edgecumbe the moment that note was discounted by the bank for Hamlyn; but it was Edgecumbe's own liability. If it were necessary to make out a liability as against Hamlyn, who was the payee and indorser of the note, it might become money lent to him to be carried to his account; but it can be no money lent to Edg'ecumbe. His lia- bility is only on the note, and to that ex- tent I think Hamlyn was the agent of Edgecumbe ; but Hamlyn was not Edge- cumbe's agent to pay interest. There is nothing in the transaction to show that he was authorized by Edgecumbe to ihake an agreement to pay interbSt on account so aa to make a payment of interest by Hamlyn" a payment by Edgecumbe, and to Tiring the case within the common law, assisted by Lord Tenterden's act, and make it a promise to pay ; even if there had been such an agreement, it was all put an end to by the accounts. It was in evidence — and that makes the transaction perfectly clear — that Edgecumbe wanted some money, iei30, to be paid into the Devon and Cornwall Bank, in ol-der to meet a bill, and it is said that thewupon this note was given by Edgecumbe to Hamlyn, to enaUe him to go and get the money, which he did get; and on the 28th of January, 1862, an account is furhished, whereby it ap- pears that the jBISO, together with Is. 6d, § 104.J ACKNOWLEDGMENT BT PART PAYMENT. 287 Sec. 104. Principle and Reqnisites of an Acknowledgment by Part Payment — The principle upon which a part payment of principal or interest by a debtor wlH prevent his availing himself of the bar of the statute is, that such a payment amounts to an acknowledgment of the debt ; and from an absolute acknowledgment, as we ha^e seen, the law- implies a new promise founded on an old consideration to pay.' In a banker's commission, and 9* lid. interest, was paid to Hamlyn on the 23d of Oc- tober, 1851, by means of a sum ■wMcli he obtained from a building society, and the consequence as between Hamlyn and Edge- cnmbe is, that Edgecnmbe had then paid this note, and it was the duty of Hamlyn to have gone and redeemed the note, and taken it up ; and if there had been any authority to pay interest, which I do not think there ever was, that would eleaily have been revoked by this; because, Ham- lyn having been paid the money by Edge- cumbe, there would be no authority after- wards for him to go and pay interest on a debt that did, not exist. Therefore it is perfectly clear, that as the mere discount- ing of a bill, and getting the money from the banker, gives no authority to pay in- terest, and that after the 28th of January, 1852, any aathority to pay was revoked, and the action being brought more than six years afterwards, the statute of limi- tations is a perfect answer; and as to that letter, I agree entirely with my Lord, that there is no obligation upon a man to an- swer a letter. I may write to a man to say he owes me deiO,000 ; that is not a proof of liability. There ia no obligation upon him to write an answer." ■Watson, B., said : " 1 am entirely of the same opinion. In the first place, it is necessary to prove a promise within six years, and that must be done in writing, under Lord Tenterdon's act ; and there is here no pretence of a writing. Then, was there payment of interest by the defendant within six years ? Up to a certain point in the case, it might be left open whether there was or not ; stUl, there is no evi- dence to go to the jury of agency. As soon as ever the account was put in, that was utterly destructive of any case, be- cause it shows that from the 23d of Oc- tober, 1851, as between Hamlyn and the defendant, that account was settled, and Hauih II was using the promissory note to bolster up his account with the bankers. And to say that was » promise to pay within six years is not correct. It ia a most conclusive promise that he would not pay, according to my view of the case ; and so far from there not being any evi- dence of a promise, 1 think there is direct evidence to the contrary." Chaxxell, B., said: "I am also of opinion that this rule should be dis- charged. The nonsuit was clearly right. Unless there was a payment by the defend- ant himself or by his authoiized agent within six years prior to the commence- ment of the action, that is a payment of interest It is not pretended that there was any payment by the defendant, and 1 am clearly of opinion the payment of in- terest by Hamlyn was not a payment in the character of agent of the defendant It is unnecessary, I think, to consider whether there was any evidence at any one time, and for some purpose, that Ham- lyn was the agent of the defendant Edge- cumbe, and 1 am clearly of opinion that no agency arose to the extent of authorizing Hamlyn to make a payment on account of Edgecumbe: a payment of interest to keep the liability alive, by reason of the fact (i his being tlie holder of a promissory note, but of which Edgecumbe was the maker. The plaintiffs chose to put in the account; and it appears clearly on the 28th of Janu- ary, 1852, all liability on the part of Edge- cumbe towards Hamlyn has been dis- charged, and it seems to me a violent inference to draw, that after that had been discharged Edgecumbe authorized Hamlyn to act in any way as his agent in the mat- ter. If Hamlyn had sued Edgecumbe on the note, he would have had an abundant answer, and 1 cannot conceive, after the liability of Edgecnmbe was released, that he authorized Hamlyn to act as his agent to keep the debt alive." 1 English i>. Wathen, 8 Bush (Ky.) 387 ; Bealy v. Greenslade, 2 Cr. & J. 61; 288 STATUTES OF LIMITATION. [chap. IX. leading English case upon this question^ the requisites of an aeknowl- cdgmeut bj^ part payment are laid down as follows : " In order to take a case out of the statute of limitations bj- a part payment, it must ap- pear in the first place that the payment was made on account of a debt ; secondly, that the payment was made on account of the debt for which the action was brought ; and in the third place it is necessary to show that the payment was made as a part payment of a greater debt, bi-- cause the principle upon which a part pa,yment takes a case out of tlu statute is that it admits a greater debt to be due at the time of part payment. " It must also appear that the payment was made before the action was brought.'' Sec. 105. Effect of Part Payment of Principal or Interest. — Questions have been raised how far a payment of principal implies a Purdon v. Purdon, 10 M. & W. 562. A part payment suspends the statute, and starts it anew from the date of such pay- ment. Thorn v. Moore, 21 Iowa, 285 ; Strong V. M'Con&ell, 5 Vt. 338 ; Dyer v. "Walker, 54 Me. 18 , Hioks u. Luslc, 19 Arlf, 692 ; Eeal Estate Bank v. Hartfield, 5 id. 651 ; Burr v. "Williams, 20 id. 171 ; Joslyn V. Smith, 13 Vt. 353 ; Tillinghast V. Nourse, 14 Ga. 6,41 ; Turner v. Eoss, 1 E. I. 88 ; Ealcom v. Eichards, 6 Gush. (Mass.) 360; Partlow «. Singer, 2 Oregon, 307; M'Gehee v. Greer, 7 Port. (Ala.) 637 ; Biscoe v. Stone, 11 Ark. 39 ; Chap- man V. Boyce, 16 N. H. 237 ; Eaton v. Gillet, 17 "Wis. 435 ; "Walton v. Rohinson, 5 Ired. {N. C.) L. 341 ; Smith v. Simms, 8 Ga. 418; Bridgeton v. JoneS, 34 Mo. 471; Palmer v. Andrews, 1 MoAl. (U. S. C. C.) 491 ; Hart v. Holly, 18 Ga. 378 ; McLaren V. McMartin, 36 N". Y. 88 ; Barron v. Ken- nedy, 17 Cal. 674 ; "Whipple v. Stevens, 22 N. H. 219; Carshorei). Huyok, 6 Barb. (N. Y.) 683. Payments on a bond and mortgage, and wi-itten acknowledgments of the amount due thereon within twenty years, repel the presumption of payment under the New York statute. Carll v. Hart, 15 Barb. (N. Y.) 566. 1 Tippets V. Heane, 1 C. M. & E. 252; Smith V. Simms, 9 Ga. 418 ; Eucker v. Frazier, 4 Strobh. (S. C. ) 93 ; Carshore V. Huyok, 6 Barb. (N. Y.) 583 ; Sander- son V. Milton Stage Co., 18 Vt. 107. Payment of ° judgment recovered for in- terest on a note is not sufficient to take the principal out of the statute. Morgan V. Rowland, L. E. 7 Q. B. 493. ^ Part payment after notion brought does not remove the statute bar. Bate- man V. Pindar, 2 G. & D. 790. But under the old theory the rule was otherwise. Love V. Hackett, 6 Ga. 486. In feweet v. Hentig, 24 Kan. 84, the court held that a mere promise to give credit for a payment previously made is not sufficient. Thus, in that case the plaintiff, in 1874, was an accommodation indorser upon a note be- longing to defendant. The maker was in- solvent. Suit was brought. Plaintiff interposed no answer. Upon request of defendant, plaintiff, pending the suit, paid several hundred dollars upon defendant's promise to credit it on the claim, and take judgment for the balance only. Notwith- standing this, defendant took judgment for the face of the paper, of which fact plaintiff soon had knowledge. Calling de- fendant's attention thereto, he promised to correct the error and allow the payment on the final settlement of the judgment. Several payments were made from time to time, and this promise frequently repeated, but no correction was ever made. De- fendant was the attorney of a company of which plaintiff was president. They occu- pied the same office and had intimate per- sonal and business relations, in the latter of which defendant wa-s plaintiff's con- fidential adviser. After over four years had passed, defendant refused to credit the judgment with this prior payment, and de- manded the full amount due upon its face. Held, in an action brought by plaintiff to compel the credit of this amount and restrain the collection of the judgment therefor, that the statute of limitations was a bar to any relief. § 105. J ACKNOWLEDGMENT BY PART PAYMENT. 289 promise to paj* interest, and vice versa. On this point it may be noticed that, as a rule, a debt is composed of principal and interest, and upon all interest-bearing claims the interest is a part of the debt as fast as it accrues, and unless when a payment is made upon the principal debt the debtor expressly disavows the interest, the latter is therebj' saved from the operation of the statute, as well as the principal, and payment of interest is consequentlj' a part payment of the whole debt ; ^ and this reasoning is equally applicable to the converse case. In an English^ case before referred to,'' Parke, B., observes that payment of interest,, it is true, does not necessarily prove that the principal money is due,, but that it is evidence of it. And it may be said that, unless at the time of its payment the debtor expressly restricts its application, and. disavows the principal debt, it is conclusive.' But under the rule that a simple contract cannot coexist with one under seal, unless one i&, intended to i)e simply collateral to the other, it is held that the mere payment of interest on a single bill barred by the statute is not suflS- cient to support assumpsit for the balance due thereon, or to interrupt the statute as to the sealed instrument.* The rule is that a partial paj-- ment on a debt, whether of principal or interest, before it becomes due, is prima facie evidence of an acknowledgment that the residue is un- paid, and suspends the running of the statute from that date,^ and such. 1 Bealy v. Greenslade, 2 Cr. & J. 61 ; Sigourney ». Drury, 14 Pick. (Mass. ) 887 ; Wyatt V. Hodson, 8 Bing. 309 ; Barrow V. Kennedy, 17 Cal. 574 ; BradBeld v. Tap- per, 7 Eng. L. & Eq. 541 ; Freyburg «. Osgood, 20 Me. 176 ; Walton ». Robinson, 5 Ired. (N. C.) 341 ; Conwellii. Buchanan, 7 Blaokf. (Ind.) 537; Sanford i>. Hayes, 19 Conn. 591 ; Worthington v. Grimsditch, 10 Jur. 26. ' Purdon v. Pardon, ante. ' Rich V. Niagara Savings Bank, 3 Hun (IS. Y. ), 481 ; Marceliu v. Creditors, 21 La. An. 423. * Leonard v. Hughlett, 41 Md. 380. 6 English V. Wathen, 9 Bush (Ky.), 387. In Denise v. Denise, 110 K. Y. 562, it was held that a claim for services rendered for many years under an agreement to pay a certain sum per year is an entire claim, and a payment thereon takes the entire balance out of the operation of the stat- ute of limitations. hi re Consalus, 95 N. Y. 340, where af- ter the making of a loan, a promissory note was given by the borrower to the lender for the sum loaned, under an agreement that the former should pay more than lawful in- VOL. I. — 19 terest, it was held, that while the defence of usury was good as against the note, the- lender was entitled, in the absence of evi- dence that the loan was made originally upon a usurious agreement, to recover the- sum loaned with lawful interest, deduct- ing therefrom payment of interest which had been made at the usurious rate agreed, upon. The statute of limitations was set up as; a bar to a claim for the original loan. It was held that the payment of interest, although made and indorsed upon the us- urious note, was to be considered as made- for the money originally loaned, and might be resorted to, to take the case out of the statute. In the account filed upon the accounting of an executor, he charged himself with a note given by him to his testatrix, but credited himself with the amount thereof on the ground that it was void for usury. Objections were filed to this credit. Evi- dence was given showing that the note was made under a usurious agreement, but for money previously loaned, and no proof was made that the original loan was usurious. It was held that the executor was properly charged with the amount of 290 STATUTES OF LIMITATION. [chap. IX. payment may be proved by parol.^ It follows, therefore, that the implication of a promise derived from part payment of principal or interest is liable to be rebutted, and will not take the case out of the statute, unless made under circumstances which do not negative the implied promise to pay the residue. Thus, where a person, on being applied to for interest, paid a sovereign, and said he owed the money but would not pay it, it was held not to amount to an acknowledgment, subject to the question for the jury to decide whether the debtor seri- ously intended to refuse payment, or spoke only in jest.'' So where a the original loan, and lawful interest thereon less payments ; that it was not ne- cessary to state the charge in the objections filed to the account. The provision of the statute abolishing the common law rule under which the appointment of a debtor .as executor by his creditor discharges the debt, and making the executor liable for ■" any just claim " the testator had against ■him, ' ' as for so much money in his hands, " includes an indebtedness of a firm of which the executor is a member ; and the same should be included in the inventory and charged to the executor. In Gilbert v. Comstock, 93 N. Y. 484, ■the court held that a claim was presented ifor the board of the testatrix from 1863 to her death in February, 1879, with interest .from the expiration of each year. It ap- peared that a payment in part was made 'hy the testatrix in November, 1875. It was held that the claim was of a character ito which the statute of limitations might attach.; but that the payment operated as an admission and renewal of liability for 'whatever was unpaid for .six years prior thereto ; and that a decree of the surrogate limiting the recovery to six years prior to 'the death of the testatrix was error. Prior to the going into effect of the code, a contestant of a claim presented by an executor against the estate was not re- quired to present a written answer or formal objections:; the claim was open to any an- swer of defence, and was subject to be de- feated if at the testator's death the statute of limitations had run against it. 1 Carshore v. Huyck, 6 Barb. (N. Y.) 583 ; Bank of Utioa v. BaUou, 49 N. Y. 155; Comm'rs of Leavenworth t». Higgin- botham, 17 Kan. 62. '^ Wainman v. Kynman, 1 Ex. 118. The mere fact of payment does not neces- .snrily take the case out of the statute where there are words spoken at the time that indicate that the debtor did not ad- mit any balance to be due, and it is for the jury to say whether the debtor did or did not intend to refuse payment of the balance. In Buildon v. Walton, 1 Exch. 617, in an action by an executor for money lent by his testatrix to the defendant more than six years before the commencement of the suit, to which there was a plea of the statute of limitations, it was proved that within six years before the ■commence- ment of the suit the plaintiff filed a bill against the defendant for a discovery and account, and the defendant in his answer admitted the payment by him to the tes- tatrix of half-yearly payments of £8 10s. each down to a period within the six years, but alleged that they were paid, not as interest upon a debt, but by way of annu- ity for the life of the testatrix, in pursu- ance of an agreement made between them at a period when the testatrix gave the defendant a sum of £340. It was held that the jury were at liberty to reject the latter part of the statement, and that the answer might be construed by them merely as admitting the payment of the money, and that the appropriation of it, as interest upon the debt sued upon, might be proved by other evidence. Wii.de, C. J. . " In the course of the argument many observations were made on the one side and the other upon the case of Willis V. Newham, 3 Y. & J. 518, iu which it was held that a verbal acknowledgment of part payment of a debt within six years would not, after 9 Geo. IV. o. ] 4, be an an- swer to a plea of the statute of limitations ; but it seems to us quite unnecessary to express any opinion on that point j in reality there is no question here upon the 9 Geo. IV. 0. 14. The defendant has made no admission by words only, not contained § 105.] ACKNOWLEDGMENT BY PART PAYMENT. 291 partj' revives a debt barred by the statute b}' paj'ing it into court, and at the same time refuses to pay interest upon it, the payment of the in a writing signed by him ; whatever ad- mission he has made was made in writing, signed and sworn to by him, and the true question is, what did he admit by that writing? For the purpose of this argu- ment it may be assumed that the acknowl- edgment of a payment, as well as any other acknowledgment, must be in writ- ing, signed by the party ; and we agree ■with Mr. Peacock that the Written admis- sion by the defendant must be construed by the court ; and we think that the plain meaning of it is, that the defendant ad- mits having paid £8 10s. half-yearly to Elizabeth Craven down to December, 1842, but asserts that such payment was made by way of annuity, and not as interest on a debt. We also agree with Mr. Peacock that the whole admission must be laid be- fore the jury as one entire writing ; but we are also of opinion that the jury were not bound to believe the whole of it, — they might believe the fact of £S 10s. being paid half-yearly, but reject the residue, and infer from the other evidence in the case that the payments were made for interest upon a debt. If the admission had been merely that the defendant had paid the sum. of ^8 10s. half-yearly, with- out adding that it was appropriated to any particulaT account, there can be no doubt that the jury might have inferred from the evidence that a debt existed, and that in- terest was paid down to a certain period, that the subsequent payments admitted to have been made were also for interest. In Waters v. Tompkins, 2 C. M. & R. 723, it was held that where the fact of payment of a sura of money is proved, the appropri- ation of it may be shown by other evi- dence, even by a verbal statement. Here the fact of payment was proved by an ad- mission in writing, and of the appropria- tion there was sufficient evidence to be left to the jury. The only question is, whether the assertion of the defendant re.specting the appropriation was conclu- sive. If the payments had been accom- panied by that assertion they would have been qualified by it, and could not have been treated as payments of interest on a, debt ; but here there is an admission of a bygone act, viz., payment, and an asser- tion respecting it, which may or may not be true. It is no part of the act, but only what the defendant chooses to say respect- ing it. We think, therefore, that althongli that assertion must be admitted as evi- dence, the jury ought to have been allowed to contrast it with the other evidence in the case, and to decide whether the pay- ments admitted were for interest or not ; and inasmuch as that other evidence was withdrawn from their consideration, and they were directed to find for the defend- ant, there must be a venire de novo." The interpretation given to Stat. 9 Geo. IV. c. 19, in Willis u. Newham, supra, was followed in several subsequent deci- sions, Magbee v. O'Neil, 7 M. & W. 531 ; Bayley v. Ashton, 4 P. & D. 214 ; although not without an intimation that its author- ity was doubtful, and might be set aside by a court of error ; and it has been finally overruled by the Exchequer C'hamber in Chase v. Jones, 6 Exch. 573. It had pre- viously been held in Williams v. Godley, 9 Met. (Mass. ) 482, where the same point arose under the Bevised Statutes of Massa- chusetts, which contained a provision simi- lar to the 9 Geo. IV. , that as a ^vriting is not made necessary to the proof of a part pay- ment, it may be established by the admis- sions of the defendant, although such ad- missions are no longer adtnissible as a direct acknowledgment of the debt. The same construction has been given to a similar legislative enactment by the courts of Maine, Sibley «. Lambert, 30 Me. 253 ; and in Connecticut, in Beardsley v. Hall, 36 Conn. 270, it was held that such ad- missions might be proved although made on Sunday. And as an admission of pay- ment is less likely to be misconstrued or misstated than an admission of the debt itself, there is no reason to question the soundness of this interpretation. The stat- ute law of Mississippi, however, goes fur- ther, and renders a payment however proved insufficient, without an express promise. Smith v. Westmoreland, 12 S. & M. (Miss. ) 663; Davidson v. Marshall, 5 id. 564. And such is also the case in Nevada. It was held in Eastwood v. Saville, 292 STATUTES OF LIMITATION. [chap. IX. principal does not revive the claim for interest.^ A paj^ment made upon a note or other obligation, before the statute has run thereon, sus- pends the operation of the statute from that date, and starts it afresh, the former time being stricken out ; ^ and a payment made after the 9 M. & W. 618, while Willis v. Newham was still law, and on its authority, that an indorsement of part payment on the back of the instrument on which suit was brought was not sufficient to take the case out of the statute, even when in the hand- writing of the defendant, unless it was also signed by him. It is, however, well settled in most of the States of this coun- try, where the statute does not otherwise expressly provide, on general principles, as it was in England before the passage of the 9 George IV.,that an indorsement on a note in reduction of the debt may be submitted to the jury as a recognition of its existence, whether such indorsement be made by the plaintiff or the defendant ; in the latter case, as an admission of the fact which it sets forth, Porter v. Blood, 5 Pick. (Mass.) 64 ; Jones v, Jones, 21 N. H. 219, and in the former, as an entry made against in- terest, and consequently admissible in favor of, as well as against, the person by whom it is made, Roseboom v. Billington, 17 Johns. (K. Y.) 182; Clapp v. IngersoU, 11 Me. 83 ; Coffin v. Buckman, 12 id. 471 ; The Trustees 1). Osgood, 12 id. 176; Adams V. Seitzinger, 1 "W. & S. (Penn.) 243; Tlie State Bank v. Wood, 5 Ark. 641 ; Wood V. Wylks, 5 id. 754 ; Bradley u: James, 13 C. B. 822; Concklin v. Pearson, 1 Rich. (S. C.) 391. In order, however, to give such an indorsement by the plaintiff the character of an entry against interest, it nfrnst appear to have been made before the bar of the statute attached to the instru- ment, Cremer's Estate, 5 W. & S. 331 ; Howe D. Hathaway, 20 Me. 345 ; Smith V. Simmons, 9 Ga. 418 ; Alston v. The State Bank, 4 Ark. 455 ; for othei-wise he would he able to manufacture evidence, Connelly v. Pierson, 4 111. 108 ; Whitney V. Bigeiow, 4 Pick. (Mass.) 113. That part payment is only prirna facie evi- dence, and may be rebutted, see Aldrich V. Morse, 28 Vt. 642 ; Ayer v. Hawkins, 19 id. 28 ; State Bank v. Moody, 10 Ark. 638 ; Arnold o. Downing, 11 Barb. (N. Y.) 654 ; Jewett v. Petit, 4 Mich. 508. 1 CoUyer v. Willcock, 4 Bing. 313. And see Hollis v. Palniei-, 2 Bing. N. C. 713, where a payment of interest was held not to revive the principal under a pecu- liar state of the pleadings. A part pay- ment, accompanied with a denial that more is due, will not take the balance out of the statute. United States v. Wilder, 13 Wall. (U. S.) 254. Payment of a promis- sory note "payable three months after demand " was sought to be enforced by its holder. The note was indorsed with pay- ment of two instalments of interests, but no interest has since been paid during a period of upwards of twenty years . Held, that payment of interest was not evidence that a demand for payment of the principal had been made so as to make time run against the holder of the note under the statute of limitations, and that the fact that more than twenty years had elapsed without payment was not a fact from which the court could presume satisfaction of the note, in the absence of any demand having been made. Brown v. Kutherford, 42 L. T. Kep. N. s. 669. 2 In Nelson o. D'Armand, 13 La. An. 294, where an obligation was payable by instalments, and all the instalments were due when the debtor made a payment, without directing on which instalment the credit was to be given, it was held that tjie payment must be deemed to have been made in part payment of all, and conse- quently that prescription was stopped as to all, and started anew from that date. De Camp v. Molntire, 115 N. Y. 258. Upon the trial of an action on a promis- sory note a motion for a non-suit was made on the ground that the note in suit was barred by the statute of limitations. The plaintiff asked leave to amend his com- plaint by substituting as his cause of action a claim for lumber sold and delivered, which he alleged was the original consid- eration of the note. An order was there- upon entered, which provided that on pay- ment of certain costs plaintiff have leave to withdraw a juror and move at Special Term for leave to amend his complaint. In case said motion was denied, the order § 106.] ACKNOWLEDGMENT BY PART PAYMENT. 293 statute has run has the same effect. The same, rule prevails where a part paj'ment of principal on interest is made by one joint debtor be- fore the statute has run. In such case, the payment by one prevents the running of the statute as to all.^ But in California it has been held that a payment made before the statute has run will not take the debt out of the operation of the statute.* Sec. 106. Rebuttal of Implication. Indeterminate Debt. — Where a debtor at the time of making a payment to his creditor expresslj- states that it is not on account of the debt in question, it is not a part paj'ment of such debt. But the statement must be made at the time, otherwise anj' declarations on the subject by the debtor are only evi- dence of more or less value as to the intention with which the pay- ment was at the time made. Thus, where a defendant in a chancery suit had admitted paj'ment by him of certain half-yearly paj'meuts down to a period within six years, but alleged in It that they were paid not as interest on a debt due by him to the plaintiff's testatrix. provided that the complaint should be dis- missed with costs, " as moved by the de- fendant." A juror was withdrawn, the plaintiff made the motion for leave to amend, which was denied and judgment was entered dismissing the complaint. Upon appeal by him, the General Term re- versed the judgment for error in the rejec- tion of the evidence.' The defendant appealed to this court, claiming that the plaintiff could not review the judgment because he accepted its rendition as one of the conditions of the withdrawal of a juror and the permission granted him to move for an amendment of his complaint. Held, untenable; that the purpose of the order was to give plaintiff an opportunity for his motion, and if he failed, to put both par- ties in their original position; that the non-suit must be considered as if the trial had ended in that manner, and plaintiff had liberty to question the decision on appeal. The complaint alleged that the note in suit was dated Nov. 10, 1877, that no part thereof had been paid " except $278.11, on or about Feb. 12, 1880." The answer denied "that any sum was ever paid by the defendants, or either of them, as part payment of said note, or on account of it," and alleged that the plain- tiff, for a good and valuable consideration, agreed, on or about Feb. 12, 1880, to accept said sum of $278.11 in full satisfac- tion and discharge of the claim against the defendants, "which was the sole and only consideration of said note." Upon trial the plaintiff put in evidence a receipt or agreement signed by defendants, dated Feb. 12, 18S0, acknowledging the re- ceipt from the plaintiff of the discharge of his mechanic's lien upon certain railroad property, the same to be returned within a reasonable time, or "in lieu thereof the sum of $278.11 to be received in settle- ment and discharge of said lien from re- cord, as against the owner, and to be credited on account of moneys paid on the claim as against the contractors .... the balance to be settled hereafter." Plain- tiff offered evidence showing that the claim referred to was the demand represented by the note. This was rejected. This was held error; that the sole issue pre- sented by the pleading was as to whether the payment was made on the note or in accord and satisfaction; that the evidence bore directly upon that issue, as it tended to prove that the payment made was, in truth, a payment upon the debt which the note represented, the effect of which pay- ment would be to save the bar of the statute. 1 Burgoon ti. Bixler, 55 Md. 38i ; National Bank of Delaware v. Cotton, Wis. S. C. Sept. 1881. Schindel v. Gates, 46 Md. 604; EUicott v. Nichols, 7 Gill(Md.), 86. '' Fairbanks v. Dawson, 9 Cal. 89. 294 STATUTES OF LIMITATION. [CHAP. IX. but by way of annuity and in pursuance of an arrangement made when a sum of money was given to the defendant, it was held that the jury were at liberty to reject the latter part of the statement, and that it might be taken simply as an acknowledgment of payment of money, and the fact that it was interest on the debt might be proved by other evidence.-' It must be borne in mind, however, that where the debt is not for a definite amount, but the sum is indeterminate, it may be when a pay- ment has been made that it has been made not as a part payment, but as a discharge of the whole in the intention of the payor, in which case, of course, no promise to pay the residue can be imphed.'^ Sec. 107. Payment into Court. — Tlie payment of money into court will not revive the right to tlie residue, if any, of the debt, inasmuch as such payments are commonly made as payments of all that is ad- mitted by the debtor to be due.' The rule was formerly otherwise ; * but it is now settled that a payment of money into court only operates as an admission of a liability to the extent of the amount so paid.' And now, under the modern theorj- as to the office and eflfect of these statutes, such a payment after action commenced would be too late." Sec. 108. Identity of Debt. — There must, of course, be reason- able evidence of the identity of the debt sued for with that on account of which the part payment has been made.' Where, under an agree- ment, there are separate causes of action to recover two sums secured by the same bond, payment on account of one of such sums will not revive the debt as to the other sum.' Where a payment appears to have been made on account of an existing debt, the jury are warranted in considering it as applied to the payment of the particular debt sued for, unless there is evidence of anj' other existing debt. Sec. 109. Questions for the Jury. — The question whether a pay- ment made by a debtor. Who afterwards seeks to take advantage of the statute, was made on account of and in part payment of the par- ticular debt is for the jury, subject, of course, to the direction of the court. In an English case,* where there were two distinct debts due ' Baildon v. Walton, 1 Exeh. 617. other items out of the statute. Peck v. " Burn V. Boulton, 2 C. B. 476 ; Waugh New York, &c. Steamship Co., 5 Bosw. V. Cope, 6 M. &W. 824. Where a debtor (N. Y.) 226. transmitted a draft to his creditor, which " Long v. Greville, 3 B. & C. 10 ; Eeid was received by him, the debtor not mak- v. Dickons, 5 B. & Ad. 499. ing any allusion to the account, or of any * Dyer v. Ashton, 1 B. & C. S. debt whatever, it was held that it did not ' Kingham v. Bobins, 5 M. & W. 94 ; operate as a part payment, so as to remove Lechmere v. Fletcher, 1 C. & M. 623 ; Tat- the bar of the statute. Hussey v. Burg- tenhall v. Parkinson, 2 M. & W. 752; Reid wyn, 8 .Tones (N. C.) L. 385. Nor does a v. Dickons, ante; Cox v. Parry, 1 T. E. special payment have that effect. In order 464. to make a payment or account effectual to * Waters v. Tomkins, 2 C. M. & R. 723. save the entire account, it must be made ' Ashlin v. Lee, W. N. 1875, 42. generally. If it is made specifically to 8 Evans v. Davies, 4 Ad. & El. 840. liquidate particular items, it will not take ' Burn v. Boulton, 2 C. B. 485. § 110.] ACKNOWLEDGilKNT BY PART PAYMENT. 295 from the debtor, a general payment by him not specifically appropriated as a payment upon either claim was held to have no effect upon remov- ing the statute bar as to either ; and the same principle was adopted as to an acknowledgment in a Connecticut case, the gist of which is given elsewhere.* But in a later case in Connecticut,* where there were two distinct debts against the defendant, it was held that the question whether an acknowledgment was made with reference to a particular debt was for the jury ; and the rule applies with equal force to an ac- knowledgment arising from a part payment.' Tn a later English case,* the doctrine of Burn u. Boulton was somewhat restricted, and was held applicable onl}' in cases where the two debts are entirely distinct ; and in such a case, where a payment is made bj' the debtor without any directions as to its application, the question as to whether it removed the statute bar as to either must depend upon the circumstances of the case,' and that it was properly a question for the jury whether a pay- ment so made was made generallj' on account of whatever might be due, and, if so, that both debts would be revived therebj-. Sec. 110. General Rule as to Appropriation of Payments. — Where a debtor makes a payment to a creditor to whom he is owing several distinct debts, the general rules as to the appropriation of the money are : 1st, That it shall be applied as the debtor directed at the time of payment, in accordance with the maxim, quicquid solvitur secundum ani- mun solventis; ' 2dly, that if the debtor does not direct as to its applica- tion, the creditor may do so at any time before judgment, under the maxim, quicquid recipitur, recipitur in modum recipientis ; ' and, 3dly, 1 Buckingham V. Smith, 23 Conn. 453. Bonaffe v. Woodbury, 12 Pick. (Mass.) 2 Cook V. Martin, 29 Conn. 63. 463 ; Levystein ». Whitman, 59 Ala. 345 ; 8 See also Bigelow v. Whitney, 4 Pick. Adams Exp. Co. v. Black, 62 Ind. 128. (Mass.) 112 ; Buckingham v. Smith, aiite / Bat the appropriation must be made by Coles r. Kelsey, 2 Tex. 541 ; Guy ». Sams, the debtor at the time of payment, and he 6 Gill (Md.), 87 ; Shaw v. Newell, 2R. I. cannot, after the creditor has applied it, 264. change the application of it. Haynes v. * Walker v. Butler, 6 El. & Bl. 506. Waite, 15 Cal. 446 ; Hill .;. Southerland, 6 See Cook v. Martin, ante. 1 Wash. (Va.) 128. * McKee v. Stroup, 1 Eice (S. C), 291; ' The rule, as stated in the text, is well Jackson V. Bailey, 12 lU. 159 ; Sherwood established. Sawyer ». Tappan, 14 U. H. V. Haight, 26 Conn. 432 ; Read v. Board- 352 ; Bird v. Dayis, 14 N. J. Eq. 467 ; man, 20 Pick. (Ma&s. ) 441 ; Treadwell v. Hai-groves v. Cook, 15 Ga. 321 ; Bobe v. Moore, 34 Me. 112; Semmes v. Boykin, 27 Stickney, 36 Ala. 482; Middleton v. Frame, Ga. 47 ; Mitchell v. Dall, 4 H. & G. (Md.) 21 Mo. 412 ; Watt v. Hoch, 25 Penn. St. 159 ; Martin w. Draher, 5 Watts (Penn.), 411; United States b. Bradbury, Dav. 544; Pindall v. Bank of Marietta, 10 Leigh (0. S. C. C.) 146 ; Logan v. Mason, 6 W. (Va.), 484 ; Wetherell v. Joy, 40 Me. 325 ; & S. (Penn.) 9 ; Johnson v. Johnson, 80 Black v.- Schouler, 2 McCord (S. C. ), 292 ; Ga. 857 ; Sickles v. Ayres, 6 N. J. Eq. 29 ; Calvert ». Carter, 18 Md. 73 ; Irwin v. Holmes v. Pratt, 34 Ga. 558 ; Fargo ». Paulett, 1 Kan. 418 ; Taylor v. Sandiford, Buell, 21 Iowa, 292 ; Crisler v. SlcCoy, 7 Wheat. (U. S.) 13; Solomon v. Dreschler, 33 Miss. 445; Livermore v. Rand, 26 N. H. 4 Minn. 278 ; Jones v. Williams, 39 Wis. 85 ; Howland u. Kench, 7 Blackf. (Ind.) 300 ; WMtaker v. Grover, 54 Ga. 174 ; 236. But where interest is due, the pay- 296 STATUTES OF LIMITATION. [chap. IX, if neither of tliem apply the payment to any particular claim, the law will apply it to the oldest debt, or as may be just.' The creditor may ap- propriate a payment not appropriated by the debtor to a debt barred b^' the statute,'* or it seems, according to some of the cases, that where there are several notes barred by the statute, and a general paj-ment is made, he may so appropriate the money as to take them all out of the statute.' But in New York, as will be seen by the cases from that ment diust Ije first applied to the liquida- tion of it. Johnson v. Eobhins, 20 La. An. 569 ; Mills v. Saunders, 4 Neb. 190. But if there is anything in the ciroumstanees attending the payment or the debt itself, from which the intention of the debtor may be implied, his intention must pre- vail. Howland v. Rench, 7 Blackf. ( Ind. ) 236 ; West Branch Bank v. Moorehead, 5 W. &S. (Penn.) 542 ; Mclntyrew. Cross, 18 Vt. 451 ;■ Cass v. McDonald, 39 id. 65. 1 Leef V. Goodwin, Taney, 460 ; Plum- mer v. Erskine, 58 Me. 59 ; Mueller v. Wiebracht, 47 Mo. 468 ; Matthews v. Switzler, 46 id. 301 ; Bean v. Brown, 54 N. H. 395; King v. Andrews, 30 Ind. 429; Nutall V. Browning, 5 Bush (Ky.), 11 ; McDaniel v. Barnes, id. 183 ; Trullinger V. Kofoed, 7 Oregon, 228; Harding k. Tifft, 75 N. Y. 461. The debtor's intentions, if not expressed, cannot be considered. Brice V. Hamilton, 12 S. C. 32. But in Wit- towsky V. Keid, 82 N. C. 116, it was held that his intention might be proved by directions given either previously or sub- sequently. But this rule is inconsistent with the general rule, and is not sustain- able as to directions given by the debtor after the payment has been made ; and a contrary doctrine was held in Mahawie Bank v. Peck, 127 Mass. 298. After the creditor has made the application he can- not change it, even at the request of the debtor, if other parties are affected thereby. Harding!). Wormley, 8 Baxter (Tenn.), 578. On the general proposition stated in the text, and sustaining it, see Hill v. Bobbins, 22 Mich. 475 ; Champenoes v. Fort, 45 Wis. 355 ; Howard „•. McCall, 21 Gratt. (Va. ) 205 ; Waterman v. Younger, 26 Ark. 513 ; Genin v. Ingersoll, 11 W. Va. 549 ; St. Albans v. Failey, 46 Vt, 448 ; Langdon V. Bowen, id. 512 ; Whittaker v. Grover, 54 Ga. 174 ; Jones t). Williams, 39 Wis. 300. ^ Harrison v. Davies, 23 La. An. 216. If payments by a debtor to a creditor on account of his indebtedness generally, which consists of various promissory notes payable at various times, are made before one of the notes is barred by the statute of limitations, they may be applied after- wards by the creditor to that note, and when so applied take effect from their respective dates and not from the date of the application. Ramsay v. Warner, 97 Mass. 8. A payment on account, in order to take the wliole account out of the stat- ute, must be made generally. A payment, made to be specifically applied to particular items, wUl not take the other items out of the statute. Peck d. New York, &c. Steamship Co., 5 Bosw. (N. Y.) 226. Where the whole of the plaintiff's claim in the suit was barred by the statute, ex- cept |3.98, and the defendant gives evi- dence of the payment of $6.29, on a verbal order to J. T. D., a few days before suit brought, it is competent for him to prove to prevent the claim from being taken out of the statute, that at the time he made the payment he declared that he "owed the plaintiff nothing," but that he re- ferred paying it to having any further trouble about it. Davis v. Amy, 2 Grant's Gas. (Penn.) 412. The holder of a prom- issory note delivered it to his creditor as collateral security for a mutual and open account current, with the understanding that any sum collected on it should be ap- plied to the account ; and afterwards an agent of the creditor collected and paid to him a dividend on the note from the estate of the maker in insolvency, which payment, on the day thereof, the creditor applied to the account. It was held that the statute did not begin to run on the account until after that day. Whipple v. Blackington, 97 Mass. 476. » Jackson i>. Burke, 1 Dill. (U. S. C. C.) 311 ; Mills V. Fowkes, 5 Bing. N. C. 455. But see Reed v. Kurd, 7 Wend. (N. Y.) § 110.] ACKNOWLEDGMENT BY PART PAYMENT. 297 State cited in the last note, tlie creditor cannot make such an applica- tion of a general paj-ment, upon a debt barred by the statute, unless the debtor consents thereto, and it is presumed that the money was paid upon the debts not barred until the contrary is shown ; and in a Vermont case, where the plaintiff held notes against the defendant, which were dated more than six j'ears before the commencement of his action, and the jury found the fact that within six years the defendant made a general payment to the plaintiff on account of some one or more of the notes, or of the indebtedness manifested bj' them, it was held that a promise of further payment must be implied. It is not essential that the defendant should have recollected the giving of the notes at the time of making the pa3'ment, if he was aware of the indebtedness for which they were given, and acted with reference to it ; and if a debtor owing several demands to his creditor makes a general payment, and neglects to direct its application, the right of designation belongs to the creditor ; yet he must make an application to which the debtor could not justly or reasonably object. Therefore, where the demands consisted of three notes, all of which were barred by the stat- ute, and the debtor made a general paj'ment. it was held that the creditor might appl^' it upon which note he pleased, and that he might indorse it, if he so chose, upon the largest note, although it was subse- quent in date to the others, and that the effect would be to take the note upon which the application was made out of the statute of limita- tions ; but that he could not divide the payment among all the notes, indorsing a part on each, and claim that all were thereby taken out of the operation of the statute. ^ The right to make the appropriation, as stated, belongs in the first instance to the debtor ; but if, at the time, he neglects to make it, the right passes to the creditor, and the debtor cannot afterwards claim it. ^ But the rule only applies to lawful debts.^ 408 ; Heath v. Grinnel], 61 Barb. (N. Y.) era! payment to liquidate a debt against 190, where it was held that the creditor which the statute has run, yet such appli- could not apply a general payment in dis- cation does not remove the bar as to the charge of a debt barred by the statute, balance of the debt, Mills v. Fawkes, 5 without the debtor's assent. Bing. N. C. 455, Kash v. Hodgson, 6 1 Ayer o. Hawkins, 19 Vt. 26. D. & G. M. & G. 474,, and such also is A general payment made by a debtor to the rule in Massachusetts and Maine, a creditor, where there are two or more Blake v. Sawyer, 83 Me. 129; Pond v. obligations, one of which is barred by the Williams, 1 Gray (Mass.), 630; Eamsay v. statute, may be applied by the creditor Warner, 97 Mass. 13. upon the obligation which is barred, and ^ Bell v. Radcliff, 32 Ark. 645. If be- according to the Vermont cases, Sanborn fore payment is made the debtor expresses V. Cole, 14 L. R. A. (Vt.) 208; Eobie v. a wish as to its application, such an ex- Briggs, 59 Vt. 448; Wheeler v. House, 27 pression involves a direction by him, and Vt. 735, removes the statutory bar as to he is entitled to the benefit of the appli- the entire debt, and this rule has been cation requested. Hansen v. Eounsavell, adopted in Missouri. 'Beck u. Haas, 31 74 III. 238. Mo. App. 180. But in England, while it ' Duncan v. Helm, 22 La. An. 418 ; is held that the creditor may apply a gen- McCausland v. Ealston, 12 Kev. 195 ; 298 STATUTES OF LIMITATION. [chap. IX. In the case of running accounts, in the absence of special circumstances which ought to control, the payment will be applied to extinguish the debts according to priority of time. ' In England, it has been held that where there are several debts, some barred and some not, the effect of the payment of principal generally will be to take anj- debt not then barred out of the statute, but will not revive a debt which is barred ; and the inference will be that the paj-ment is to be attributed to those not barred. ^ Thus, in the case last referred to there were three notes executed, two of which were barred and one was not, and a payment was made of a small sum on account generally ; it was held the payment did not revive the remedy ou the two older debts, but did prevent time from continuing to run in the case of the latter.* Where there are two distinct debts, it seems that an unappropriated payment may revive neither.* If there ai-e several distinct debts, and a payment is made the subsisting debt. Lowery «. Gear, 32 111. 382; Pond D.Williams, 1 Gray (Mass.), 630. But where there are several debts, none of which are barred, a general pay- ment keeps on foot the debt upon which it is applied. Ramsay v. Warner, 97 Mass. 8 ; Briggs v. Williams, 2 Vt. 283 ; Harker v. Conrad, 12 S. & E. (Penn.) 301; Starett v. Barber, 20 Me. 457; Oli-rer v. Phelps, 20 N. J. L. 180 ; Selleck v. Turn- pike Co., 13 Conn. 453; Robinson v. Doo- little, 12 Vt. 246 ; McFarland v. Lewis, 3 111. 344; White v. Trumbull, 15 N. J. L. 315 ; Callahan v. Boazman, 21 Ala. 246 ; Benny v. Rhodes, 18 Mo. 147; Prottor v. Marshall, 18 Tex. 63; Hamer v. Kirkwood, 26 Miss. 96; Thompson v. Phelan, 22 N. H. 339. If money is paid on an account, and no specific application of it is made by either party, the law will apply it to the payment of the oldest items. Harrison v. Johnson, 27 Ala. 445 ; Fairchild v. Holly, 10 Conn. 175; Shedd v. Wilson, 21 Vt. 478 ; Thurlow v. Gilmore, 40 Me. 378 ; Harrison v. Johnson, 27 Ala. 445 ; Home V. Planters' Bank, 82 Ga. 1. But if some items are due, and others not, the applica- tion must be made to those which are due. Effinger v. Henderson, 33 Miss. 449. If money is paid generally upon debts which are differently secured, the law will apply it in discharge of the debts for which the security is most precarious, Chester «. Wheelwright, 15 Conn. 562 ; Baine v. Williams, 18 Miss. 113 ; Smith v. Wood, 7 N. J. Eq. 74 ; Bosley v. Porter, 4 J. J. Mar. (Ky.) 621 ; Gwinn ■/. Whittaker, 1 H. & J. (Md.) 754 ; State v. Thomas, 11 Storer v. Haskell, 60 Vt. 341. But if the debtor directed or consented to the appli- cation of the payment on an illegal debt, the court will not interfere. Feldman v. Gamble, 26 N. J. Eq. 494. 1 Sprague V. Hazelwinkle, 53 111. 419; Moore v. Gray, 22 La. An. 289; Crompton V. Pratt, 105 Mass. 255 ; AUen v. Brown, 39 Iowa, 330 ; Worthley v. Emerson, 116 Mass. 374 ; and even where a part of the items accrued before and a part after the defendant was discharged in bankruptcy, of which the creditor had no notice, does not change the rule. Hill v. Eobbins, 22 Mich. 475. ^ Cranworth, C, in Nash v. Hodgson, 6 De G. M. & G. 474. 5 Nash V. Hodgson, 1 Kay, 650 ; on appeal, 6 De G. M. & G. 474. * Burn V. Boulton, 2 C. B. 476. If two demands were due at the time of pay- ment, so that it is doubtful to which the payment applied, such part payment will not remove the statute as to either. Armi- stead II. Brooks, 18 Ark. 521 ; Burr o. Burr, 26 Penn. St. 284. In Nash p. Hodgson, 6 De G. M. & G. 474, where there were three notes, upon two of which the statute had run, and a sum of money was paid on account of interest generally, but less than the amount due on the note not barred, it was held that the payment must attach to that note. And it seems that the payment cannot be distributed among all of them, so as to remove the statutory bar as to those upon which the statute has run, as in such cases it will be presumed th5.t the payment was intended to apply to § 112.] ACKNOWLEDGMENT BY PART PA"EMENT. 299 without any direction as to how it shall be applied, and the creditor applies it at once to the payment of a debt which is barred, it will not take the balance of that debt out of the statute ; ^ nor where there are several distinct notes or other obligations, which is a part of a series, will the payment of one remove the statute as to the others.^ Sec. 111. Oral Proof of Part Payment. — As previously stated, it was originally held in England that the evidence of part payment to avoid the statutes must be in writing, signed, it being considered that to allow a debt to be revived on any less strict evidence of a part payment was within the mischief of the act.3 But this doctrine, after being frequently questioned,* was eventually overruled, ^ and now a part payment for the purposes of the statute may be proved orally or otherwise, as any other fact ; and the same rule prevails in this coun- try, except in Nevada, where the statute requires evidence in writing, signed by the party charged. ^ Sec. 112. Part Payment need not be in Money. — It is not necessary, for the purposes of the statute, that a part payment of principal or interest should be made in actual money. Thus, a pay- ment in goods may be a sufficient part payment, and if parties to a bill of exchange agree that goods shall be supplied and taken accordingly, that amounts to a part payment.' So the indorsement and deliver3' by the debtor of a note of a third party, payable at a future time, either in payment of, or as collateral security for, his indebtedness to another Ired. (N. C.) L. 251; and if interest is 482; Sibley v. Lamtert, 30 Me. 253. In due, the payments will first be applied in Shumate v. Williams, 34 Ga. 245, the discharge of it, Fadden v. Fortier, 20 111. plaintiff, in order to save a note from the 509 ; Heam ». Cuthert, 10 Tex. 216 ; operation of the statute, relied upon cer- Lush u. Edgerton, 13 Minn. 210; and the tain indorsements made thereon in 1857, balance will be applied upon the principal which was within the period of limitation, as will be most beneficial to the creditor, accompanied by parol proof that such pay- Estebene v. Estebene, 5 La. Au. 738 ; ments were in fact made ; but the court Hampton v. Deane, 4 Tex. 455 ; Jencks v. held that, under the statute requiring an Alexander, 11 Paige (N. Y.) Ch. 619. acknowledgment in writing, signed, &c., 1 Pond K. Williams, 1 Gray (Mass.), such payments were not suflBcient. See 630. also Waterman d. Biirbank, 8 Met. (Mass.) 2 Brown ». Johnson, 20 La. An. 486. 362, where mere proof of an indorsement * Willis V. Newham, 3 Y. & J. 518 ; made by the payee was held not sufficient. Trentham v. Deverill, 3 Bing. Jf. 0. 397; .Where a debt exists against a person, and Bayley u. Ashton, 12 A & E. 493; Maghee it is conceded by the parties that part of V. G'ifeill, 7 M. & W. 631 ; Eastwood v. it should be paid by another person, and Sarille, 9 id. 615. that such part is really the debt of such * See per Lord Dbnman in Trentham person, the payment by such person of V. Deverill: " If I were now called on to such part of the debt does not remove the put a construction upon the act, I should statute bar as to the balance of the claim, be of opinion that any proof of payment as it is not a part payment of such debt, was sufficient ; " apd a similar remark of but only a payment of the debt of such Lord Abingbr in Maghee v. O'NeUl. third persoiL Carlisle v. Morris, 8 Ind. 6 Cleave ii. Jones, 6 Exch. 573. See 421. Edwards v. Janes, 1 Kay & J. 534. ' Hart v. Nash, 2 C. M. & E. 337. 6 Williams v. Godley, 9 Met. (Mass.) 300 STATUTES OP LIMITATION. [CHAP. iX. !has been held to operate as a paj'ment sufficient to take the case out of the statute.^ But where goods are delivered to a creditor to be sold, and the proceeds applied in liquidation of the debt as far as they will go, the goods must be sold, and the proceeds applied upon the debt within a reasonable time. Thus, where goods were pledged by the maker of a promissory note to the payee, with power to sell the same and apply the proceeds on the note, and the payee held the goods six years before he sold them and made the application on the note, it was held that the sale and application was not made in a reasonable time, and that the application of the proceeds of such sale on the note would not save it from the operation of the statute. ^ And the same rule is applicable "where the note of a third person is given to a creditor as collateral, "with instructions " to collect the same and apply the proceeds to the jpayment" of the note in suit. In such a case, if the creditor accepts the note, he takes it subject to the instructions ; and as soon as the bote is collected, the proceeds are to be applied upon the note at that time, and that proof of payment on the collateral note would operate as proof of payment on the note to which such collateral note was to be applied. But this was held subject to the exception that the creditor could not unreasonably delay the collection, and that, if he did, the proceeds could not be considered as ajsplied upon the note in suit by the direction of the debtor.' Where the note of a third person is given as collateral, the proceeds to be applied upon the principal note, the receipt of a dividend on the note takes the principal debt out of the 1 Smith V. Ryan, 39 N. Y. Superior Ct. note would operate as proof of payment of 489. the same sura on the note in suit. In a 2 Porter v. Blood, 5 Pick. (Mass.) 54. New York case, where, in October, 1855, See also Lyon v. State Bank, 12 Ala. 508, H., who owed P. $26.50 for a set of tomb- where cotton was, with the consent of the stones, made an agreement with S. that S. sureties on a note, deposited as collateral should pay P. for the stones upon their thereto, with power to sell and apply the delivery, H. to credit S. with that sum proceeds on the note; and although the upon a demand which he had against him; cotton was sold, and the proceeds applied and P., being indebted to B. Bpon aprom- on the note after its maturity and before issory note dated Jan. 30, 1854, payable the statute had run thereon, it was held one day from date, agreed with B. that he that it did not suspend the running of the might receive pay of S. for the stones, and statute as to the balance. apply the amount thereof upon the note, 8 In Haven v. Hathaway, 20 Me. 345,. and P. thereupon delivered the stones to in an action upon a note payable more than B., S. having previously consented that six years before the commencement of the the parties might make this agreement,- action, it appeared that the defendant had and having had notice that it was made, delivered another note to the plaintiff, "to and having assented to it when B. took collect the same and apply the proceeds to the stones to him, it was held that the the payment" of the note in suit, and the effect of the transaction was to substitute plaintiff had accepted it, it was held that S. in place of P. as debtor to B. for the he was bound to comply with these direo- price of the stones, and that it operated tions ; that, as soon as he collected money in prcesenti as a payment of such price upon it, he was obliged to consider it a upon the note. Butts v. Perkins, 41 Barb, payment of so much of the note in suit; (N. Y.) 509. Tumey v. Dodwellj 3 El. & and that proof of payment on the collateral Bl. 136. § 113.] ACKNOWLEDGMENT BY PART PAYMENT. 301 statute from the time of the receipt thereof.' If a check is given as collateral to a note, it does not operate as a pa3-ment until collected.'^ In all cases where goods or securities are given as collateral, with power to sell or collect, and apply the proceeds in liquidation of a debt, the power must be exercised within a reasonable time in view of the circumstances, or the application of the proceeds upon the debt will not save it from the operation of the statute,' else in such cases, by unreasonable dela^', a creditor could keep his debt on foot indefinitely. And generally it may be said that where a thing is received upon agreement in reduction of a debt, that is a payment sufficient to take the debt out of the statute.* The giving of a note for interest accrued is a sufficient part payment,^ or a credit given therefor in accouut.s In an English case,'' it was agreed between the plaintiff and defendant that the defendant, instead of paying interest due bj' him, should afford maintenance to the plaintiff's child, and it was held that the maintenance of the child amounted to a part payment. But notwith- standing the doctrine of these cases, under the rule that a payment must be made under such circumstances that a new promise can be implied to pay the balance of the debt, it is not believed that the appli- cation by the creditor of money received upon a collateral, whether with or without express authority from the debtor so to do, can have the effect to remove or suspend the operation of the statute, unless the debtor subsequently ratified and adopted the creditor's act, for the reason that, while the debtor may constitute the creditor his agent for the sale of the collateral, or the collection of the money due upon it, he cannot authorize the creditor to make for him, to himself {the creditor) a new promise to pay the debt ; and this is, and necessarily must be the tendency of the later cases. ^ Sec. 113. Test as to 'what amounts to Fart Payment. — It is not necessary that either money or goods should actually pass, for pay- ment may be made by settlement of account. " If two persons meet, and one says to the other, I owe j-ou so much, and you owe me so much, but instead of an exchange of monej' they agree to settle the account by setting off one against the other, and that is done, that is a payment by settlement of account." ' So, too, a creditor may, by the consent of the debtor, give him a portion of the debt, and a credit 1 Whipple V. Blackington, 97 Mass. * Hooper v. Stevens, 4 A. & E. 71. 476. Either a payment in money, or giv- ^ Wenman v. Mohawk Ins. Co., 13 ing security for a part or the whole of a Wend. (N. Y.) 267; Sigourney ». Weth- debt is sufllcient, Manderston i>. Robert- erell, 6 Met. (Mass.) 553. son, 4 M. & Ry. 410; Balch r. Onion, 4 « Smith v. Ludlow, 6 Johns. (N. Y.) Cash. (Mass.) 559 ; Whitney v. Bigelow, 267. 4 Pick. (Mass.) 110; or giving a note as '' Bodger u. Arch, 10 Exch. 333. collateral, Ilsley v. Jewett, 2 Met. (Mass.) « Brown v. Latham, 58 N. H. 30 ; 168. Smith v. Ryan, 66 N. Y. 352 ; Harper v. 2 Garden «. Brace, L. R. 3 C. P. 300. Frailey, 63 id. 442. » Porter v. Blood, orete; Haven ». Hath- ' Per Pollock, C. B., in Amos ». away, aide. Smith, 1 H. & C. 238. 302 STATUTES OF LIMITATION. [CHAP. IX. entered in pnvsuanco thereof will be effectual as a part pajmient. Thus, in an P^nglish case/ after a debt due to the plaintiff by his son had been barred by the statute, the plaintiff, hia son, and his son's wife had an interview, at which the interest due to the plaintiff was calculated. The plaintiff's son then put his hand into his pocket, as if to get out the monej- to pay it. The plaintiff stopped him, and, writing a reci'ipt for the monej-, gave it to his son's wife, sajang he would make a present of it to her. It was held, by a majority of the Court of Exchequer, Bramwell, B., dissenting, that the transaction was sufficient to take the case out of the statute. The true test as to what transactions will amount to a part payment for the purposes- of avoiding the statute appears from the judgment in the case last cited, as well as from other cases,- to be, that anj* facts which would prove a plea of payment of interest or principal in an action brought to recover either would amount to a payment sufficient to bar the statute.' And Bramwell, B., in dissenting from the opinion of the majority in the case last cited, did so on the gi'ound that in his judgment the facts would not have sup- ported such a plea of payment. So, if by agreement money is paid by a debtor on behalf of his creditor to a third person, that may be a sufficient part payment as between the debtor and creditor.^ Sec. 114. Part Payment by Bill or Note. — Where a debtor gives a bill or note on account of a debt, it operates as a part pa3'ment, even though it ultimately proves worthless. It may be said that payment, in the popular use of the term, is taken to include a giving and taking of a negotiable instrument on account of a debt, as well as a giving and taking it in satisfaction of a debt. A bill is conditional payment, and its immediate operation as an acknowledgment of a balance demand is not to be affected by its operation as a payment, being liable to be defeated at a fnture time ; and even if it is worthless, the intention and the act b3' which it is evinced remain the same,* and it operates as such an acknowledgment of the debt as removes the statute bar. ' A question arises, when a bill or note is given in part payment of a debt, whether the part payment must be considered made at the time of the delivery of the bill, or of payment thereof. On this point it has been decided tliat when a debtor draws a bill of exchange to be applied in part payment of a debt, and the bill is paid when due by the drawee to the creditor, it operates as a part payment from the time of the de- livery of the bill bj' the debtor, not from the time of the payment.' 1 Maber v. Maber, L. E. 2 Exoh. 153. bill of exchange, to be applied in part pay- 2 Bodger «. Arch, 10 Exch, 333; Amos ment of the debt, and the bill is paid when V. Smith, 1 H. & C. 238. due by the drawee to the creditor, it oper- ' Maber v. Maber, L. R. 2 Exch. 153. ates as part payment, to defeat the statute * Worthiiigton v. Grimsditch, 7 Q. B. of limitations, only from the time of the ^"9- delivery of the bill by the debtor, not ' Turney v. Dodwell,, 3 El. & Bl. 136. from the time of it? payment. Gowan v. 6 In Irving v. Veitch, 3 M. & W. 90, Forster,. 3 B. & Aid. 607 ; Smith v. Ryan, it was held that where a debtor draws a 89 N. Y. Superior Ct. 489. 115.] ACKNOWLEDGMENT BY PART PAYMENT. 303 Sec. 115. Indorsements on Notes, etc. — Indorsements by a creditor on a bill or note admitting payments of interest or principal, if made before the debt was barred, were formerly, after the creditor's death, held to amount to sufficient evidence for the purpose of avoiding the plea of the statute ; the principle of their admission as evidence being that they were acknowledgments against the interest of the person making them.^ But indorsements made after the statute has run upon the claim afford no evidence whatever that the paj'ment was made, be- cause it is an act in furtherance of the interests of the creditor, and a person will not be permitted to make evidence for himself.^ Therefore, ' Higham v. Eidgway, 10 East, 109 ; and in England, under Stat. 9 Geo. IV. c. 14, it is held tliat the provision that "no in- dorsement or memorandum of any payment written or made after the time appointed for this act to take efiFeet upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such pay- ment shall be made, shall be deemed suffi- cient proof of such pajTnent so as to take the case out of the operation of either of the said statutes," only applies to the case where there is nothing more than an in- dorsement or memorandum on the note or bill or other writing which constitutes the contract declared on. Bradley v. James, 13 C. B. 822. And it appears from the same case that the memoranda made against their own interest of dead persons in ledgers, account-books, and otherwise, may still be used as evidence for the purpose of remov- ing the statute bar. Addams v. Seitzinger, 1 W. &S. (Penn.)243; Shaffer «. Shaffer, 41 Penn. St. 51 ; Coffin v. Bucknam, 12 Me. 471; Warren ». Granville, 2 Strange, 1129; Bruce v. Robson, IS East, 32 ; Higham v. Eidgway, 10 id. 1091. The mere fact of indorsements of payments within six years, in the handwriting of the payee, is not competent evidence to prove such pay- ments. Davidson ». Delano, 11 Allen (Mass.), 523. Thus, in an English case, the defendant, in order to obtain an ad- vance of money, gave a promissory note to H., a customer of the plaintiffs', who were bankers. H. indorsed the note to the plaintiffs on obtaining the money, with which he was debited by them. The de- fendant was debited by H. with the amount, and H. had paid interest on the note to the plaintiffs within six years. It was held that these payments did not take the note out of the statute as against the de- fendant, H. not being his agent for that purpose. Harding v. Edgecumbe, 4 H. & N". 872. The bar of the statute of limi- tations is not repelled by the transmission of a draft by the debtor and its receipt by the creditor within the three years, the former not making any allusion to or rec- ognition of the account of any debt whatever. Hussey v. Burgwyn, 6 Jones (N. C.) L. 385. A credit indorsed upon a bond at a time not suspicious, by an officer of the bank, in the regular dis- charge of his duty, is sufficient evidence of the payment to interrupt prescription. Union Bank v. Foster, 14 La. An. 159. Indorsements of credits on a note, made by a promisee before the statute has closed upon the right to maintain suit, are evi- dence of corresponding payments, to re- move the bar of the statute, in Pennsyl- vania, though no longer in England ; but they are not evidence at all unless proved to have been made while the statute was running. To toll the statute by evidence of a payment, it must be proven unequiv- ocally that the payment was made on the claim in suit ; and where that is not done, the jury is not at liberty to find the pay- ment sufficient. The indorsement of pay- ment in the handwriting of the plaintiff or promisee alone is not proper to go to the jury. Shaffer v. Shaffer, 41 Penn. St. 51. 2 Briggs V. Wilson, 17 Beav. 330 ; Searle v. Barrington, 8 Mod. 278; Gleadow B. Atkin, 1 C. & M. 421 ; Sorrell v. Craig, 15 Ala. 789 ; Glynn v. Bank, 2 Ves. 38 ; Eoseboom v. Billington, 17 Johns. (N. Y.) 182 ; Bailey o. Crane, 21 Pick. (Mass.) 323 ; Butcher v. Hixon, 4 Leigh (Va.), 519 ; Read v. Hurst, 7 Wend. (N. Y.) 408; 804 STATUTES OF LIMITATION. [chap. IX. an indorsement, in order to remove tlie statute bar, must be shown by affirmative evidence to have been made before the statute bar had attached to the debt, or that a payment was made upon the claim after the debt was barred which the indorsement covers ; and the ordinary presumption that a writing was executed at the time it bears date does not attach.'' Parol evidence is admissible to prove the fact of paj'ment, or to defeat it, although evidenced bj- a writing ; ^ but in order to be effective to remove the bar of the statute, it must be shown to have been a payment in reference to the demand in suit.^ Where a payment is made upon a note, and indorsed thereon by the holder, at the request of the paj'or, proof of such fact is sufficient to remove the statute bar.' But unless a payment, as such, is actually made upon the note or claim in suit, or an indorsement is made with the debtor's assent, it cannot have the effect either to keep the debt on foot or revive it. Thus, where the debtor rendered services for the creditor, and the latter, without the debtor's assent, indorsed it upon a note he held against him, it was held not such a payment as would operate as a revival of the note.^ The usual medium of proof of a part paj'ment of a note or other written obligation is bj- an indorsement thereon.* But the bona Clapp V. Ingersoll, 11 Me. 83 ; Wilcox v. Pearnon, 9 Leigh (Va.), 144; Brown v. Hatchings, 11 Ark. 83 ; Gibson i). Peoples, 2 McCord (S. C), 418 ; M'Ghee v. Green, 7 Port. (Ala.) 537 ; Whitney v. Bigelow, 4 Pick. {Mass. ) 110 ; McMasters v. Mather, 4 La. An. 419 ; Concklin v. Pearson, 1 Eich. (S. C.) 391; Connelly v. Pierson, 9 lU. 108. It has heen held in California that, in the absence of any written acknowledg- ment or promise signed by the party to be charged, part payment does not take a debt, especially a specialty debt, out of the stat- ute of that State. Thus a memorandum indorsed on an overdue bond acknowledged part payment, and changed the title and terms of payment, but was signed by the obligee alone, the obligor only assenting thereto. Suit was brought when the term of the statute had expired, since the pay- ment fell due according to the terms of the original bond, but not since payment fell due under the agreement. Held, that the indorsement could be effective only as a verbal contract, and would not suffice to prevent the running of the statute again.st the original debt and bond. Pefia v. Vance, 21 Cal. 142. In Michigan, it is held that unexplained indorsements of payments on a bond have no weight as evidence of payment, for the purpose of charging the debtor, by treating them as an acknowledgment, so as to take the case out of the statute of limitations. Michigan Ins. Co. v. Brown, 11 Mich. 265. When an indorsement on a bond or note made by the obligee or promisee is relied on to take it out of the statute of limita- tions, the law determines whether such in- dorsement was or was not favorable to the party making it, at the time when it was made, and on this c^uestion depends its admissibility in evidence. Wilson i). Pope, 37 Barb. (N. Y.) 321. 1 Shaffer v. Shaffer, ante; Guillon o. Perry (Penn.), 1 W. N. C. 39 ; Eowe v. Atwater, id. 149 ; Kin.sloe v. Baugh, id. 147. 2 Wolf «. Foster, 13 Kan. 116. 8 Read v. Hurst, 7 Wend. (N. Y.) 408; Howe V. Thompson, 11 Me. 152 ; Haven ■0. Hathaway, 20 id. 345 ; Addams v. Seit- zinger, 1 W. & S. (Penn.) 243. * Hawley v. Griswold, 42 Barb. (N. Y. ) 18 ; Sibley v. Phelps, 6 Cush. (Mass.) 172; Smith V. Sims, 9 Ga. 418. ' Phillips V. Mahan, 52 Mo. 197 ; Kyger v. Eyley, 2 Neb. 20. 8 Alston V. State Bank, 9 Ark. 457 ; Chandler v. Lawrence, 3 Mich. 261 ; Con- nelly 0. Pierson, « 111, 108 ; Turner v. § 115.] ACKNOWLEDGMENT BY PART PAYMENT. 305 fides of the indorsement must be provedwhen made by the creditor, and relied upon by him to remove the statute bar.^ The rule in this respect was well stated by Lord Ellenbokough in the case first cited in the last note. In that case, an action of debt on a bond dated in 1785 was brought, and there were several indorsements thereon, ac- knowledging the receipt of interest down to 1793, which were proved to be in the handwriting of the defendant. These were allowed to be good evidence of the bond remaining unsatisfied at the date of the last indorsement. The presumption from lapse of time being thus repelled, the plaintiff, for the purpose of meeting certain direct evidence of pay- ment, in 1794, proposed to read other indorsements down to 1795, ac- knowledging the receipt of interest and part of the principal. But these- latter indorsements were not in the handwriting of the defendant. Aq objection being taken to their being read. Lord Ellenborough thought it necessary to prove that the}' were on the bond at, or recently after, the times when thej- bore date. Although it maj- seem, he said, at first sight against the interest of the obligee to admit part payment, h& may thereby, in many cases, set up the bond for the residue of th& sum secured. If such indorsements, he continued, were receivable- whensoever they va&y have been written, this would be allowing the- obligee to manufacture evidence- for himself to contradict the fact of paj-ment. And he had been at a loss to see the principle on which these receipts, in the handwriting of the creditor, have sometimes been, admitted as -evidence against the debtor ; and he was of opinion that, they could not properly be admitted, unless they were proved to have been -written at a time when the effect of them was clearlj' in contra- diction to the writer's interest. And it has ever since been held that it cannot be taken for granted, in all cases, because a person admits that, any portion of an amount due him has been paid, that it in reality has. been ; and that the mere indorsement of a paj-ment upon a promissorj' note by the holder, after the expiration of the time limited by the stat- ute, affords no legal evidence that such payment was in fact made. While the indorsement of a paj-ment made after the note is barred" does not furnish evidence sufficient to establish the fact of payment, yet the party seeking its benefit is not deprived thereof, if he can establish such fact by other competent evidence, as it is well settled that, except where the statute otherwise expressly provides, the fact of part payment may be established by parol, and that, too, even though it is e-videnced by a writing, which is not produced.' But, as previously stated, an in- Crlsp, aStrange, 287; Sigonmey v. Drury, ^ Rose v. Bryant, 2 Camp. 321 ; Briggs 14 Pick. (Mass.) 387; Gale k Capron, 1 v. Wilson, 39 Eng. L. & Eq. 62 ; Beatty Ad. & El. 102; Hathaway i-. Haskell, ». Clement, 12 La. An. IS ; Beltzhoovei-K 9 Pick. (Mass.) 42; lUsley v. Jewett, 2 Yewell, 11 G. & J. (Md.) 212 ; Vaughaa Met. (Mass.) 168 ; Dowling v. Ford, 1 M. v. Hankmson, 35 N. J. L. 79 ; Waters v. & W. 325 ; Howe v. Thompson, 11 Me. Tomkins, 2 C. M. & E. 723. 152 ; Hunt v. Brigham, 2 Pick. (Mass.) " Rose v. Bryant, 2 Camp. 321. 581. 8 Wolf w. Foster, cnie. In Eastwood tt VOL. I. — 20 306 STATUTES OP LIMITATION. [CHAP. IX. dorsement made a sufficient time before the statute has run to repel any idea that it was made solely with a view to prolong the life of the note, being against the interest of the payee, will keep the note on foot. Thus, in an action by an administrator on a promissory note commenced more than six years after the date of the note, an indorsement in the hand- writing of the intestate of a payment purporting to have been made more than two j^ears before the statute of limitations would attach, and six months prior to his death, it was held the jury might regard it as evidence of a new promise, though there was no proof other than as above of the time when said indorsement was actually made.^ The effect of an indorsement maj' be repelled as proof that no payment was in fact made, or that it was made without the payee's assent. Thus, if the holder of a promissory note receives goods from the promisor, which at liis request are sold, and the proceeds indorsed on the note within a rea- sonable time, it will be considered, in reference to the statute of limita- tions, as a payment by the maker's order. But if the holder makes such sale and indorsement after a reasonable time has elapsed, without the .assent of or notice to the maker, this will not take the note out of the statute.^ The fact that the rule in relation to indorsements made before the statute has run upon a note or other obligation is prima facie evi- dence of a payment, being predicated upon the circumstance that it is against the interest of the payee, it follows that the force of this pre- sumption depends upon the time when it was made in reference to the Saville, 9 M. & W. 615, in an action on a There was no attestation to this indorse- ^promisaory note, made by the defendant, ment, nor any proof that the cross was dated the 'eth of June, 1834, whereby he made by the plaintiff; and the whole of it, promised to pay the plaintiff on demand except the cross, was proved to be in the £35, with lawful interest. There was also handwriting of the defendant. There was ■a count upon am account stated. Pleas, no proof of any payment by the defendant first, to the first count, that the defendant on account of the note; but to take the did not make the note ; secondly, to the case out of the Stat. 9 Geo. IV. u. 14, the second count, non-assumpsit; thirdly, to plaintiff relied solely on the above indorae- the whole declaration, actio non accrevit ment. For the defendant, it was con- infra, sex amios. Issues thereon. tended that it was an indorsement charging The particulars stated, that the plaintiff the plaintiff with the receipt of the money, : sought to recover £28, and interest from and not an acknowledgment or promise to the 4th of August, 1837, being the balance charge the defendant, within the meaning due on the promissory note, after giving of Lord Tenterden's act; and that it was the defendant credit for the sum of £7 necessary to prove a payment of money in paid on account of the note, and also all fact, to take the case out of the statute, interest due thereon up to the said 4th of But Eolfe, B., directed a verdict for the August, 1837. plaintiff, which was set aside in Exchequer At the trial before RotFis, B., on the upon the ground that the indorsement was note in question being produced in evi- not evidence of a part payment sufficient to dence by the plaintiff, it bore an indorse- take the case out of the statute, and in the ment as follows: — absence of any proof of the fact of pay. " 4th August, 1837. ment the plaintiff could not recover. "Received of John Saville, £6. i Coffin v. Bucknam, 12 Me. 471. " Betty x Eastwood." ^ Porter v. Blood, 5 Pick. (Mass.) 54. § 116.] ACKNOWLEDGMENT BT PART PAYMENT. 307 time when the statutory bar would attach. If an indorsement was made a year after the note was given, or even a year before the statutory bar attached, it would afford much stronger inherent evidence that a pay- ment was in fact made upon the note, than one indorsed onlj- a few days before the statute would run upon it. And an indorsement made after the statutory bar has become complete, being in the interest of the creditor, of course affords no evidence whatever of the fact of payment.^ And, in order to make such indorsements even prima facie evidences of paj-ment, under any circumstances, the plaintiff ought to be required to show that they were made at the time they bear date.^ An indorsement by the plaintiff, without the knowledge of the defendant, does not operate to take the note out of the statute, unless it is accompanied by proof that the payment was in fact made to apply on the note.^ In Missis- sippi it is held that a part payment is not sufficient to take the debt out of the operation of the statute, unless it is accompanied by an express ad- mission made at the time, not onlj- that the debt is due and unpaid, but that the payment is of oxAy part of the debt ; ^ and from the mere fact of part paj'ment the jury are not warranted in finding a promise to pay the balance.^ Where a demand is paj-able by instalments, and all are due, a general paj'ment will take the entire demand out of the statute.^ If an account is presented to a debtor, and he examines and makes no objection to any items of it, a general payment on account, without specifj'ing any particular application, saves the whole account from the statute.' Sec. 116. Evidence of Part Payment. — The burden of establish- ing the fact of a part paj'ment, and all the elements requisite to give it effect as such in the removal of the statute bar, is upon the plaintiff ; * and, in those States where an acknowledgment or new promise must be . in writing, cannot be proved hy an indorsement upon the note or other obligation made by the paj-ee.° But an indorsement of a part pay- 1 See Eose «. Bryant, aide. ^ Biggs v. Roberts, 85 N. C. 451. 2 Ibid.; Clapp v. IngersoU, 11 Me. 83; *> McMasters v. Mather, 4 La. An. 419; "Watson V. Dale, 1 Port. (Ala.) 247. The Connelly v. Pierson, 9 111. 108; Taylor v. bona fides of the indorsement must be McDonald, 2 Mill (S. 0.) Const. 178; shown. Chambe'rs v. Walker, 4 Eich. Whitney b. Blgelow, 4 Pick. (Mass.) 110; (S. C.) 548. Conklin v. Pearson, 1 Rich. (S. C.) 391. 8 Whitney v. Bigelow, 4 Pick. (Mass. ) In Knight v. Clements, 45 Ala. 89, 6 Am. 110. Eep. 693, this question was raised, and * Footeii. Bacon, 24 Miss. 156; Ander- the facts and the rules adopted are well' son V. Robertson, id. 389; McCuHough stated by Paek, C. J. He said: "In V. Henderson, id. 92 ; Smith v. West- an action on a promissory note made by moreland, 12 S. & M., (Miss.) 663; David- three parties against one of the makers, son V, Harrison, 33 Miss. 41. who pleads the statute of limitations, and 5 Smith V. Westmoreland, ante. the plaintilf seeks to avoid the bar of the 8 Nesom v. D'Armand, 13 La. An. statute by a payment indoreed on the note 294. before the bar was complete, he must prove 7 Pecki). New York Steamship Co., 5 aiBmiatively — the burden is on him — Bosw. (N. Y.) 226; Dyer «. Walker, 54 that the payment was made by the defend- jjg_ 18, ant before the cause of action was barred. 308 STATUTES OE LIMITATION. [chap. IX. ment upon a note or other obligation made by the debtor himself is "The statute requires this. It declares that ' no act, promise, or acknowledgment is sufficient to remove the har to a suit, or is evidence of a new and continuing con- tract, except the partial payment made upon the contract by the party sought to be charged, before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby. ' Rev. Code, § 2914. In this case the plaintiff, to avoid the bar of the statute of limita- tions, relied on two alleged payments in- dorsed on the note sued on, before the bar of the statute was complete. The suit was commenced in the name of Eliza Perry, who in the complaint is averred to be the owner of the note. The note is payable to one Zebulon Rudolph, Sen. , or bearer. On her death, during the progress of the cause, the appellees, her executors, were made parties plaintiff. "The note was made by one Alexander Reid, Jesse B. Knight (plaintiff's intes- tate), and one C. W. Knight, and all three were made defendants. The summons not being served on said Reid, the complaint was amended by striking out his name. Thereupon the death of Jesse B. Knight was suggested, and appellant, his adminis- trator, was, at a subsequent term, made a defendant in his stead. It seems, in the meanwhile, and before the death of Eliza Perrj', the original plaintiff, a trial was had between her and defendant, C. AV. Knight, on pleas of the statute of limita- tions, filed by defendants before the death of said Jesse B. Knight, and there was a verdict and judgment for said C. W. Knight. " Afterward, the cause was tried between the appellees, as the executors of the said Eliza Perry, and appellant, the adminis- trator of said Jesse B. Knight, on the orig- inal pleas of the statute of limitations. These pleas were filed by each defendant separately, each for himself. The note, on its face, being ban-ed by the statute, the complaint averred that two payments had been made on it after maturity, and before the bar of the statute was complete. On that trial, one of the plaintiffs was intro- duced as a witness, and it was offered to be proved by him that the indorsements of the payments on the notes were in the handwriting of one R. B. Rudolph ; that said Rudolph was the general agent of said Eliza Peny, and transacted all her busi- ness, but was then dead. The appellant objected to the competency of said witness to prove that said indorsements were in the handwriting of said Rudolph, and that he was the agent of Eliza Perry. The court overruled the objection, and appel- lant excepted. The witness was then ex- amined, and stated that said indorsements were in the handwriting of said R. B. Ru- dolph ; that he was the agent of said Eliza Perry, and was dead. On this evidence, the plaintiffs offered to read said indorse- ments to the jury. To this the appellant objected, his objection was overruled, and he excepted. Thereupon the court per- mitted the said indorsements to be read to the jury as evidence of said payments at the times stated in said indorsements. To this appellant objected, his objection was overruled, and he excepted. The plaintiffs then rested. The appellant then intro- duced a witness, who testified that said note was made by said Reid as principal, and the other two joint makers as his sureties. The appellant was then exam- ined as a witness, and testified that said note was written by him and signed by said Reid, Jesse B. Knight and himself ; that said Jesse B. Knight signed the note at the request of said Reid, saying, at the time, he would sign for but few men; that said note was made at the house of said Jesse B. Knight ; that said Reid took the note, and he and witness went together to the house of the payee, said Zebulon Rudolph, Sen., and passed the note to him, and he gave the money for it to said Reidj that it was a loan of money on said note. " This was all the evidence in the case. On tliis evidence the court gave two charges to the jury. The second was ex- cepted to by the appellant, and is as fol- lows, to wit; 'If the jury believe from the evidence that there was a payment made on the note sued on, on the twenty- sixth day of January,. 1859, and that there is no evidence to show by which particular obligor the payment was made, you may, as a matter of law, presume it was made § 116.] ACKNOWLEDGMENT BY PART PAYMENT. 309 sufflcLent evidence of a new promise to remove the statute bar, unless by the paities jointly oliargeable witli tlie payment.' To this charge the appellant excepted. " The appellant then asked the court to give the following charge, to wit; 'If the jury believe from the evidence that Jesse B. Knight and C. W. Knight were merely sureties for Alexander Eeid on the note sued on, then the jury would not be autho- rized to presume, as a matter of law, that the payments indorsed on the note were made by Jesse B. Knight and C. W. Knight, or by either of them, without further proof.' This charge the court re- fused, and appellajit excepted. The ap- pellant then asked the court to give the following written charge, to wit: 'That the indorsed credits on the notes are no evidence against Jesse B. Knight, or his administrator, that any payment was made, or the time of such payment; and that unless the evidence showed that Jesse B. Knight, in his lifetime, made the pay- ments indoi-sed on the note, then the jury must find for the defendant, the only issue being on such payments.' The court re- fused to give this charge as asked, and the defendant excepted. The court thereupon gave the said charge, but with the qualifi- cation that the charge No. 2 mtist be taken as a qualification thereof. And the appel- lant excepted to the charge thus given, with the quaUfieation. "1. The indorsements on the note, on the evidence of the plaintiSs, were utterly worthless to prove either that the alleged payments were made, or by whom made, or when made ; and without this, they should not have been permitted to be read to the jury. If they had been proved to be in the handwriting of the appellees' testator, said Eliza Perry, without more evidence, to permit them to be read to the jury to defeat the bar of the statute, would have been to permit her to make evidence for herself. In the case of McGehee v. Greer, 7 Port. 537, the court say: 'A pay- ment on a note is, we think, precisely equivalent to an admission that, at the time of the payment the debt is due ; but it is necessary that the party relying upon such payment should prove the date of the payment. To permit that fact to be estab- lished by the credit entered on the note would be, manifestly, allowing the party relying on it to make evidence for himself.' "Where a party rehes on an indorsed payment on a note to stop the operation of the statute of limitations, ' such payment must be proved to have been made at the time it bears date.' Watson v. Dale, 1 Port. (Ala.) 247. So, too, an admission made by a principal maker of a note, coupled with a promise to pay, will not revive the debt so as to take it out of the bar of the statute of limitations, as against a co- maker, who is a surety; nor will payments made by him have the effect to prevent the running of the statute. Lowther et al. v. Chappell, 7 Ala. 353 ; and in Myatts & Moore u. Bell, 41 id. 222, it is held that ' a payment by one of several joint debtors, before the statute has completed a bar, will not prevent the completion of the bar as to the others, at the expiration of the time within which the statute required suit to be brought on the original evidence of debt relied on to sustain the action.' Tlie court below, therefore, clearly erred in permitting these indorsements of credits on the note to be read to the jury as evi- dence of payments made at the times stated in said indorsements, without further proof of the fact of the payments, and by whom, and when made. " 2. The second charge of the court, on the evidence in this case, to say the least of it, was inappropriate and inappli- cable, if not abstract, and was well calcu- lated to mislead the juiy, and should not have been given. " 3. The first charge asked by appel- lant was a very proper charge, was war- ranted by the evidence, and should have been given. The evidence by no means authorized the jury to presume, as a matter of law, that the payments were made by Jesse B. Knight orC. W. Knight, or either of them, especially if they believed from the evidence they were the mere sureties of said Eeid. In that case, the presump- tion was directly the other way. "4. The second charge in writing should have been given or refused in the terms in which it was written (Rev. Code, § 2756) ; and in refusing to give it in the 310 STATUTES OF LIMITATION. [CHAP. IX. the statute requires that a new promise, &c., shall be signed by the debtor ; ^ and it has been held that an indorsement of a payment made by an officer of a bank upon a note or bond due to the bank, in the regular course of his duties, is sufficient evidence of the paj'ment ; ^ and in Massachusetts it has been held that an indorsement made by the holder of the note, with the express assent of the maker, is sufficient.^ But while, where the statute does not require an acknowledgment or new promise to be in writing, and signed by the debtor, an indorsement made bj' the holder of a npte of a payment is prima facie evidence of the fact,* yet, where the statute imposes this condition, such an in- dorsement of itself affords no evidence whatever of the fact of pay- ment." But the plaintiff is not deprived of the benefit of the payment to repel the statute, if he can prove the fact by other and conclusive evidence. The onl}' consequence of a failure to have the debtor him- self make the indorsement is to deprive the plaintiff of a ready and satisfactory means of proof, and to leave him to establish the pajTnent by other proof, if he can. An indorsement under the old rule pred- icated upon the former statutes never afforded more than prima facie evidence of the fact of payment, and might be disproved. terms in wMch it was written, and giving (Penn.) 243 ; Howe v. Saunders, 38 Me. it with the qualifioation stated against the 350. In Maskell v. Pooley, 12 La. An. objection of the appellant, the court erred. 661, it was held, however, that, in order Edgar I). The State, 43 Ala. 312." to make such a payment effectual, it must 1 Tappan v. Kimball, 30 N. H. 136; be shown where and by whom the payment Sage V. Ensign, 2 Allen (Mass.), 245. was made. See also Gordon v. Schmidt, 2 Union Bank v. Foster, 14 La. An. 20 id. 427. 159. s Connelly ■!;. Pierson, a?ife ; McMasters 8 Sibley ■!). Phelps, 6 Cush. (Mass.) 172. v. Mather, ante. * Addams v. Seitzinger, 1 W. & S. § 117.] ■WHEN STATUTE BEGINS TO KUN. 311 CHAPTER X. When Statute begins to kun. Contracts. Sec. 117. Must te Party to sue or be sued. Sec. 120. Contracts for Services. 118. When Demand is necessary to start the Operation of the Statute. 119. General Rules as to when there is a Condition Precedent. 121. Eule as to Services of At- torneys. 122. When Attorney is charged with Misfeasance or Malfeasance. Sec. 117. Must be Party to sue or be sued. — By the express terms of all the statutes, the statute of limitations onh' begins to run from the time when the right of action accrues ; ^ but an important rule 1 Sims V. Gay, 109 Ind. 501 ; Ewell v. Chicago, &c. E. R. Co., 29 Fed. Rep. 57; Sohn V. Waterson, 17 WaU. (U. S. ) 596; Dyeru. Witter, 89 Mo. 81; Wright «. Tieh- «nor, 104 Ind. 185; Wright i>. Kleyla, 104 Ind. 223; Kulps App. 115 Penn. St. 356; Cutler V. Motzer, 13 S. & R. (Penn.) 356; Walker v. Hill, 111 Ind. 223. If either of the parties is under a disability, or under two disabilities, or if a disability super- venes an existing one, the statute does not begin to run untU the last disability is removed. Campbell v. Crater, 95 N. C. 156. The statute does not begin to run against an estate in dower until it has been assigned, Holmes v. Kring, 98 Mo. 452; Johns V. Fenton, 88 Mo. 64, or until she has conveyed it ; Smith v. Shaw, 150 Mass. 297, nor against devisees and legatees until a substantial right of action accrues. Garesche v. Lewis, 93 Mo. 197. Nor in the case of lands until there is an actual adverse possession. It does not begin to run against a remainderman until the de- termination of the prior estate. Fleming V. Burham, 100 N. Y. 1. Where there is a tenancy by curtesy a right of action does not accrue to their heir until the tenant's death. Smith v. Paterson, because until the happening of that event no right of entry on the part of the heir exists. Wright V. Tichenor, ante; Orthwein v. Thomas, 127 111. 554 ; Walsh v. Chicago, &c. E. E. Co., 19 Mo. App. 127. In the case of mutual accounts it runs from the date of the last charge or entry. Albany ti. Hill, 64 Miss. 540. In those States where the statute does not begin to run where the cause of action is fraudulently concealed, the statute does not begin to run against a claim for a return of a part of the purchase-money for land, where it was bought by the acre and more was paid for than was in fawt conveyed until the dis- covery of the mistake. Biggs 1). Lexington, &c. R. R. Co.,79Ky. 470. Where a deed is sought to be impeached because it was made in fraud of his creditors, the statute begins to run from the time the fraudulent deed was recorded, or from the time the creditor had actual notice of the conveyance, which- ever occurred first. Hughes i>. Litrell, 75 Mo. 573. Where a person who is occupy- ing premises as a tenant, whether rent free or otherwise, buys it in at a tax sale, with- out the owner's knowledge, the statute only begins to run from the time of the dis- covery of the fraud. Duffett v. Tuhan, 28 Kan. 292. If property sold where nothing is said as to time when it is to be paid for, it is presumed that it is to be paid for on delivery, and the statute begins to run from the time of delivery. Rous v. Wal- den, 82 Ind. 238. For a deposit of money with a bank or banker the statute begins to run from the time when it was taken. Brown v. Pike, 34 La. An. 576; British N. Am. Bank v. Merchants' Bank, 101 312 STATUTES OF LIMITATION. [chap. X. to be borne in mind determining when tlie statute attaches to a claim is, that at the time when a right of action accrues there must be in existence a partj' to sue and be sued, or the statute does not attach thereto.^ Consequently it follows that if at the time a right of N. Y. 96 ; In re Waldron, 28 Hun, 421. In actions against estates the statute be- gins to run from the appointment of the executor or administrator. Underhill v. Mobile Ex. Ins. Co., 67 Ala. 45. Where a person agrees to pay for services or any other claim by provision in his will in fa- vor of the creditor, the statute only begins to run from the time of the person's death, because until that time there is no breach of the contract and no right of action. Eagan v. Kergill, 1 Demorest (IST.Y.), 464. Against an indorser of a note payable on demand the statute begins to run immedi- ately, without demand. McMuUen v. Eaiferty, 89 IT. Y. 456. Where a statute gives a town or city or other municipal corporation the rights to take the waters of a river, and provides that no personal damage may be applied for, the assessment of his damages at any time within three years from .the taking of his property, or the construction of said works, and that no application shall be made until the water iS' actually diverted by the town, the statute begins to run from the time when water is first withdrawn therefrom by the direction of the engineer, although it is merely for the purpose of testing the en- gine. Tenneston v. Brookline, 134 Mass. 438 ; Go£f v. Pawtucket, 13 R. I. 471. Where a person agrees to pay a debt when able, the statute does not begin to run un- til the promisor's ability to pay first ex- isted. Tebou V. Robinson 29 Hun (N. Y.), 243. The statute begins to run in favor of the sureties of an executor's bonds from the time of the judicial ascertainment of the principal's liability ; Bonner v. Young, 68 Ala. 35; and in favor of sureties on the bond of a guardian from the settlement of his accoimt as guardian. Adams v. Jones, 68 Ala. 117. Upon a due bill payable on demand, the statute begins to run from its date, not from the time of demand. An- dress's Appeal, 99 Penn. St. 421. The statute begins to run upon a note payable upon demand from the day of the delivery of' the note, and not necessarily from the date of the note, because until delivery it does not become operative or give the payee a right of action. Collins v. Dris- coll, 69 Cal. 650. The statute begins to run in favor of a principal against an agent for negligence in the performance of his duties from the time the principal becomes aware of the fact upon which his right of action depends. King v. MacKellar, 109 N. Y. 215. But this rule only applies in those States where the statute is suspended by concealment of the fraud, or where it is held that a demand must first be made. Actions for breach of covenants of war- ranty do not accrue until the covenantee has made payments to protect his rights. Taylor v. Priest, 21 Mo. App. 685; Priest V. Daver, 21 id. 209. ' MuiTay t>. East India Co., 5 B. & Aid. 204; Daniel v. Day, 51 Ala. 481; Granger V. Granger, 6 Ohio, 35 ; Meeks ». Vaas, 31 Ark. 364 ; Clark v. Hardiman, 2 Leigh (Va.), 347; Bucklinu. Ford, 5 Barb. (N.Y.) 393; Johnson v. Wren, 3 Stew. (Ala.) 172; Wood V. Ford, 29 Miss. 57 ; Sewall v. Valentine, 6 Pick. (Mass.) 276 ; Sherman V. Western, &c. Co., 24 Iowa, 515 ; Fulen- snieder v. United States, 9 Ot. of Claims (U. S.), 403 ; Lewis v. Broadwell, 3 Mc- Lean (U. S. C. C), 668. In Grubb v. Clay- ton, 2 Hayw. (U. S. C. C.) 378, it was held that the statute cannot operate as a bar against a deceased person's estate if there is no administrator to sue, although letters of administration have been taken out in a foreign country. In Bucklin v. Ford, 5 Barb. (N.Y.) 393, it was held that where one received property belonging to the es- tate of a deceased person, before adminis- tration was granted thereon, the statute began to run against the right to secure the same from the time when administra- tion was granted, and not from the time when the property was received, Davis v. Gurr, 6 N. Y. 124 ; Thurman v. Shelton, 10 Yerg. (Tenn.) 383. When the statute begins to run nothing stops its operation, except the statute so provides ; but the statute docs not begin to run until there § 118.] WHEN STATUTE BEGINS TO EUN. 313 action accrues either the person entitled to enforce it, or against whom it exists, is dead, and no executor or administrator of his estate has been appointed, the statute does not attach to the claim or begin to run thereon until such appointment is made and the person appointed has qualified ; but as soon as a legal representative is appointed, the statute attaches to the claim and begins to run thereon.^ And the fact that an executor or administrator has been appointed in another State has no effect ; the statute does not begin to run until there is a legal representative of the deceased in the State where the remedy is sought. Thus, in the case last cited the plaintiffs testatrix died in New York in 1822, owning stock in a turnpike company- in Connecticut. Her will was approved and her executors were qualified in the State of New York soon after her decease. In 1841 administration was granted in Connecticut, and an administrator cum testamento annexo was ap- pointed, and he brought an action against the turnpike company to recover dividends declared by it between April, 1826, and April, 1834. To this action the defendants set up the statute of limitations ; but the court held that the statute did not begin to run against a claim in favor of a deceased person's estate, only from the time of the proving of the will or the granting of administration in that State ; Hinman, J., say- ing, " Independently of authority, we think it cannot be said that a cause of action exists, unless there be also a person in existence capa- ble of suing." ^ For the rule when the statute has begun to run before a person's death, see chapter on Execotoks and Administeators. Sec. 118. 'When Demand is necessary to start the Operation of the Statute. — In all cases where a demand is necessary to fix the lia- bility of a party, except where, as is the case in several of the States, provision is made in the statute that when a demand is necessary before an action can be brought it shall be deemed to have been made at the time when the right to make the demand accrued,' the statute of limi- tations is not put in motion until such demand is made,* although is one in being competent to sue or be of Tennessee, § 2780 ; New York, § 410 ; sued. Ruff V. Bull, 7 H. & J. (Md.) 14; and Alabama, § 3241. Grassier v. Gano, 1 Bibb (Ky.), 257; Fay- « Codman v. Sogers, 10 Pick. (Mass.) soux i>. Prather, 1 N. & M. (S. C.) 296 ; 112 ; Wolfe o. Whiteman, 4 Harr. (Del.) Rogers v. Hillhouse, 3 Conn. 398 ; Peck 246. Upon a promise to deliver goods on V. Randall, 1 Johns. (N. Y. ) 165 ; John- demand, an action will not he until a de- son v. Wren, 3 Stew. (Ala.) 172 ; Ewell v. mand is made therefor ; consequently the Chica'tro, &c! R. R. Co., 29 Fed. Eep. 57 ; statute begins to run from the date of the Glass o.'wiiliams, 16 Lea (Tenn.), 607. demand, aud not from the date of the con- 1 Hobart v. Connecticut Turnpike Co., tract, and a plea non assumpsit infra sex 15 Conn. 145; Lee v. Ganse, 2 Ired. (N. C.) annos is not a proper plea, but actio non ac- y . .Q ' areiiit infra sex annos. Brewster v. Hobart, ' 2 See also Grubb v. Clayton, arUe. Pro- 15 Pick. (Ma.ss. ) 302. Where a demand is vision is made in the statutes of many of requisite before a specific performance can the States for a suspension of the statute be sought, the statute begins to run from upon the death of a creditor or debtor. the date of the demand, aud a new cause of 8 Such a provision exists in the statutes action cannot be created by a new demand. 314 STATUTES OF LIMITATION. [chap. if a demand is not made in a reasonable time a court of equity will treat the claim as stale, and refuse to aid in its enforcement ; ^ and Bruce v. Tillson, 25 N. Y. 194 ; Taylor v. Eowland, 26 Tex. 293. A certificate of deposit issued by a banker, payable "on demand," is due from its date, and no special demand is necessary. Brummagin V. Tallant, 29 Cal. 603. In Shutts 0. Fingar, 100 N. Y. 539, it was held that no cause of action arises against an indorser of a promissory note payable upon demand, with interest, until after actual demand, and until such demand the statute of limitations does not begin to run as against the indorser. In order to hold the indorser, however, it must appear that a demand was made of the maker, or if more than one, and the note is not a partnership one, of each of the makers, upon a subsisting obligation ; so that the holder upon payment by the indorser may deliver to him the note un- impaired by any act or omission on his part subsequent to the contract of indorse- ment. Where, therefore, the holder omits to make demand until the liability of the maker, or one of several makers, has been discharged by the running of the statute, the indorser is thereby discharged. Trimble v. Thome, 16 Johns. (N. Y. ) 152 ; Wells v. Mann, 45 N. Y. 327, dis- tinguished. * In Codman v. Kogers, ante, the ex- ecutor of one of two copartners, having made a partial settlement with the surviv- ing partner, lay by for seventeen years, and until after the death of the surviving partner, without making a demand for a further accounting, and in the mean time , many of the partnership papers had been destroyed by two successive fires, and no cause for the delay was shown, the court refused to sustain a bill for an account. Wilde, J., in delivering the judgment of the court, said : " Generally, where a debt is payable in money and on demand, the statute of limitations begins to run im- mediately after the debt is contracted ; but if a demand previous to the commence- ment of the action is necessary, the stat- ute will not begin until the demand is made. But in the latter case there must be some limitation to the right of making a demand. A party must not be permitted to sleep over his rights, to the prejudice of the party on whom he makes a claim, and who by the delay may be deprived of the evidence and means of effectually defend- ing himself. A demand must be made in a reasonable time, otherwise the claim is considered stale, and no relief will be granted in a court of equity. What is considered a reasonable time does not seem to be settled by any precise rule. It must depend on circumstances. If no cause for delay can be shown, it would seem reason- able to require the demand to be made within the time limited by the statute for bi'inging the action. There is the same reason for hastening the demand that there is for hastening the commencement of the action, and in both cases the same pre- sumptions arise from delay." See also McDonnell v. Branch Bank, 20 Ala. 312, where the same rule was applied in an ac- tion against a clerk of the court for money collected on a judgment. In that case, while it was held that an action could not be maintained without proof of a demand, or actual conversion, yet it was held that the demand must be made within a reason- able time after the collection to avoid the statute. In a later case in the same State, Wright V. Paine, 62 Ala. 340, 34 Am. Hep. 24, it appeared that a special deposit of coin was made with one William 0. Wins- ton, deceased, for which receipts were giyen as follows : " Deposited with me for safe- keeping by William H. Wriglit, eight hun- dred and five dollars ($805), in gold, which I am to return whenever called for, this 4th day of November, 1857. Wm. 0. Winston." Upon this receipt was an indorsement : " Presented for settlement April 20, 1872. J. N. Winston, Admr. of Estate of Wm. 0. Winston." There was also another receipt as follows; " Re- ceived January 25, 1858, of Wm. H. Wright, forty dollars in gold, on deposit, to be paid by him on demand ($40). Wm. 0. Winston." The first receipt was held to amount to a special deposit payable only on demand, but the second was held to amount only to a cbntract for the loan of money, and that the statute began to run thereon from its date. As to the first re- § 118.] WHEN STATUTE BEGINS TO KUN. Slo courts of law will presume that such demand was made from the lapse of time, especially where the situation and relation of the par- ties are such as to render it improbable that it should be neglected.-^ But where delay in making the demand is expressly contemplated, even though the obligation is in terms payable on demand, there is no rule of law that requires that demand should be made within the statu- torj' period for bringing an action.^ Thus, in the Missouri case last referred to, an obligation for the payment of money one day after date contained a condition that if the paj-ee should demand paj-ment during her natural life it should be due and payable, but in case of her death before am* or all of the debt should be paid it should not be paid at all, it was held that a demand made more than ten years after the obliga- tion was executed was in season, and that an action brought imme- diately thereafter was not barred by the statute.' Where a promissory note made paj-able " three months after demand " was sought to be enforced more than twenty years after its date, and the statute of limi- tations was interposed as a bar thereto, it was held that, as no demand had been made until within six years from the bringing of the action, the statute had not run thereon, and that the fact that there were two indorsements of interest upon the note, made more than twenty years before the action was brought, was not sufficient to warrant the court in presuming that the note had been satisfied, in the absence of proof that a demand had been made.* Where, however, a note or other ceipt, although no demand was made there- within a reasonatle time, and the stat- for, yet seventeen years having elapsed ute begins to run from the time when de- since the deposit was made, and the de- mand was made. Thrall v. Mead, 40 Vt. positary having died in the mean time 540. before demand was made or suit brought, ' La Farge v. Jayne, 9 Penn. St. 410. it was held that the delay was unreason- In Stanton v. Stanton, 37 Vt. 411, a note able, and conclusive against a recovery, was made payable "in produce or wood And, genei-ally, it may be said that equity from the farm on demand as the payee wiU refuse to interpose to give relief may want to use the same." A demand upon a stale demand, although technically for the payment of the note was delayed the statute of limitations has not run upon for twelve years, and the court held that it, unless the laches are properly explained, the statute did not run upon the note in and the explanation is sufficient to excuse the absence of proof, when, as a matter of the delay. Phillips u. Kogers, 12 Met. fact, a reasonable time for making the de- (Mass.) 405. mand expired, or of facts from which the 1 Stamford v. Tuttle, 4 Vt. 82 ; CMlard law would assume a limit to such i-eason- V. Tuttle, id. 491 ; Raymond v. Stevenson, able time, 4 Blackf. (Ind.) 77. See post, section * Brown v. Eutherford, 42 L. T. Kep. Laches and Stale Demands. N. s. 659. In Thorpe v. Booth, Ry. 2 Jameson v. Jameson, 72 Mo. 84. The & Moo. 388, a note as follows was exe- period within which the statute will bar cuted : "March 12, 1813. Twenty-four the claim is held to be a reasonable time months after demand, I promise to pay to make demand. Thus, a note payable my sister Frances Booth the sum of seven on demand is barred in six years; conse- hundred pounds. Joseph Booth." The quently, a demand made within six years, note was presented for payment on the where a demand is necessary, is made 28th of June, 1823, and in a suit thereon 316 STATUTES OF LIMITATION. [chap. X. obligation, involving only the paj'ment of money, is made payable " at sight " or " on demand," as an action thereon can be commenced at once, and the service of the writ is a sufficient demand, it becomes due instanter, and the statute begins to run thereon from the date of the note ; ^ and the fact that it is payable with interest does not change the rule or warrant the presumption that a delay in making the demand was contemplated.^ A note or bill payable at sight is payable immediately, tlie defendant set up the statute as a bar, but it %Ya3 held that the statute had not run. See also Harrison v. Kerrison, 2 Taunt. 323 ; Mills v. Davis, 113 N. Y. 2i3. 1 Cook V. Cook, 19 Tex. 434 ; Hall V. Letts, 21 Iowa, 596 ; Darnall v. Ma- gruder, 1 H. & G. (Md.) 439 ; Easton v. McAllister, 1 Mo. 662; Wilks v. Robin- son, 3 Rich. (S. 0.) 182 ; Lanason v. Lam- bert, 13 N. J. L. 247; Hill c Henry, 17 Ohio, 9 ; Newman o, Kettell, 13 Pick. (Mass.) 418; Hirst o. Brooks, 50 Barb. (N. Y.) 334 ; Wenman v. Mohawk Ins. Co., 13 Wend. (N. Y.) 267; Caldwell V. Rodman, 5 Jones (N. C.) L. 139 ; Taylor v. Witman, 3 Grant's Gas. (Penn. ) 138 ; Fell's Point Savings Institution v. "Weedon, 18 Md. 320 ; White's Bank v. Ward, 35 Barb. (N. Y.) 637; Little „. Blunt, 9 Pick. (Mass.) 488; Norton V. EUam, 2 M. & W. 467 ; Peaslee .;. Breed, 10 N. H. 489. If the note has no date, then the statute runs from its deliv- ery. Smyth V. Bythewood, 1 Rice (S. C), 245. See Byles on Bills, 342. Where, as in some of the States, the, statute fixes a time within which such notes will be treated as maturing, in order to charge an indorser, the time named therein for presentment and notice or protest would probably be treated as the time when. the right of action thereon matures and the statute begins to run upon the note, un- less, as may be done, a demand is actually made before ; in which case the statute would begin to run from the time demand, was actually made. 2 Norton v. Ellam, ante; Wheeler v. Warner, 47 N. Y. 519 ; Hirst u. Brooks, 50 Barb. (N. Y.) 334. But upon a cer- tificate of deposit payable on demand and bearing interest the statute does not begin to run until a demand is made. Payne V. Gardiner, 29 N. Y. 146. But in Meader V. Dollar Savings Bank, 56 Ga. 605, a bank certificate of deposit payable to the order of the depositor, but indicating no time of payment other than can be inferred from the words, "interest at the rate of seven per cent on call," was held to be payable on demand. In Tripp v. Cur- tenius, 36 Mich. 494, such a certificate payable to order, on return of the cer- tificate is payable on demand. A note payable on demand is due presently, even though it contains a clause providing that it shall not draw interest " during the life of" the promisor, and from those words the court will not Infer that it was only to become payable after his death. Newman V. Kettle, 13 Pick. (Mass.) 418. In Hol- land V. Clark, 32 Ark. 697, this distinction is noticed between the time when the stat- ute begins to run against a note entitled to grace, where a demand is made, and where no demand is made. In the former case, if a demand is made on the last day of grace, the statute is held to begin to run from that day ; but if no demand is made, it does not begin to run until the succeed- ing day ; that is, upon a note entitled to grace which falls due April 1st, if demapd is made April 4th, the statute would begin to run April 4th ; but if no demand is made, the statute would not begin to run until April 5th, and a suit brought within the statutory period, dating from that time, would be in season. Where vouchers given by a public officer fix a certain time for payment, the statute does not begin to run except from that time. Bulkley v. United States, 9 Ct. of Claims (U. S,), 517. Where a note is given without interest, but a separate instrument is at the same time executed agreeing to pay interest thereon, the two instruments are treated as one, and the statute attaches to both at the same time. Prevo v. Lathrop, 2 111. 305. In such a case, if the interest is usurious and the notes representing the interest are first paid, the payment will be § 118.] WHEN STATUTE BEGINS TO KUN. 317 and neither presentment nor demand is a condition precedent to pa}-- ment, consequentlj' the statute attaches thereto from the day of its date.'' Where money is loaned " to be paid when called for," it is treated as payable on demand, and the statute begins to run from the date of the loan : "■' and the same is true as to money loaned to be paid " when called on to do so." ^ A note drawn payable " one day after" a certain event happens, is not due until the day after the occurrence of the event. The maker has all of that day in which to pay the monej-, and an action commenced during the day would be premature. Consequentlj- an action upon it is not ban-ed until the lapse of the time allowed after that day, and not including it.* Where, however, a note or bill is paj-able after sight, no debt accrues thereon until presentment. Therefore the statute is no bar to an action on such a note, unless it has been presented for payment six years before the action, the expressions "after date" and "after sight" not being synonj-mous.* A bill or note payable after demand or after notice is not payable till demand made or notice given.^ Thus, in an EngUsh case ' the stat- ute was held not to be a bar to an action on a promissory note payable twent3--four months after demand, which had been made long previously but was presented for paj-ment within six years before the action was commenced, but not until ten years after the note was given. In a late Michigan case,^ the doctrine, as previously stated in reference to tieated as having teen made on account of M. & "W. 461, the note called for interest, the principal debt, for which the horrower which indicated at least an expectation of is legally liable, and the right to recover some delay. In Howland v. Edmonds, 24 back money paid as nsnry will not arise N. Y. 307, the premium capital notes of a until the whole debt is paid. Booker v. mutual insurance company, payable ' in Gregory, 7 B. Mon. (Ky.) 439. such portions and at such time or times as 1 Byles on Bills, 342, 11th Eng. ed, the directors of said company may, agree- * Ware v. Hervey, 57 Me. 391. ably to their act of incorporation, require,' " Darnall v. Magruder, 1 H. & 6. were held to st^nd on the same footing (Md ) 439. with ordinary demand notes, so that the * Hathaway v. Patterson, 45 Cal. 294. statute began to run from date. In Waters 3 Holmes v. Kerrison, 2 Taunt. 323 ; v. Thanet, 2 Q. B. 757, a party had prom- Sturdy V. Hendereon, 4 B. & Aid. 592 ; ised to pay the amount of certain dishon- Sutton V. Toomer, 7 B. & C. 416. ored bUls 'whenever my circumstances 6 Thorpe v. Booth, Ry. & M. 388; Clay- may enable me to do so, and I may be ton V. Gosling, 5 B. & C. 360. called upon for that purpose.' This prom- ' Brown v. Rutherford, ante. ise was made in 1803. An action was 8 Palmer v. Palmer, 36 Mich. 487, 24 begun in 1838, less than six years after Am. Rep. 605. Campbell, J. , said : " It demand, and within a year after the plain- is now well settled that a note payable on tiff had learned of defendant's having be- demand is payable at once and without come solvent through inheritances. It demand, so that the statute runs from its appeared, however, that he had actually delivery. And this rule has been applied become able to pay in 1825, and the court where, from the form of the contract, it is held the statute ran from such ability manifest that immediate payment was not without demand. A similar decision was expected. Thus, in Norton v. EUam, 2 made in Jones v. Eisler, 3 Kan. 134, 318 STATUTES OF LIMITATION. [chap. X. a note payable one day, &c., after demand, was repudiated, and a note payable " thirty days after demand" was held to become due and pay- where the note was payable when the maker received a payment from govern- ment, or as soon as otherwise convenient. The statute was held to run after a reason- able time, which there was held on the facts to have been not later than sixty days. In Emery v. Day, 1 C. M. & E. 245, a contract was made for work payable out of a public fund to be provided, but it Was held the statute began to rim from the time the work was completed, al- though the fund was not raised until some time thereafter. If this question depends upon any reasonable principle, it is im- possible to find any ground for holding notes payable on demand as setting the statute running at once, which would not mak& the note in the present case barred in six years after the . expiration of thirty days. The payee could have presented it at any time, and it is not the design of the statute to put it in the power of the creditor to postpone its application at his own pleasure. ' ' Such notes are very rarely given. It is quite common to make bills of exchange payable at or after sight. But the drawer and indorsers are discharged by any con- siderable delay. It is one of the legal con- ditions of such paper that there shall be a speedy presentment. Why a different rule should be applied to a note is not evident. There are not more than half a dozen cases, if so many, in which this form of note has been passed upon directly. In Holmes v. Kerrison, 2 Taunt. 823, it was held that a note payable after sight was not barred until six years after it had been presented for payment. And in Thorpe v. Booth, Ey. & M. 388, upon the authority of that decision, a note dated March 12, 1813, payable twenty-four months after demand, and not demanded until June 28, 1823, was held not barred. In Holmes v. Kerrison, the case is put without further reasoning, upon the ground that no action could have been brought until after presentment, and Thorpe v. Booth contains no reasoning at all. While these decisions seem to have settled the practice in England, no subsequent case, so far as we have been informed, seems to have affirmed or vindicated them in any direct way, although they are probably adhered to. But so far as their principle is involved, it has been departed from to some extent at least. In Webster v. Kirk, 17 Q. B. 944, it was held that a payee who had been sued by a subse- quent holder of a dishonored bill could not in turn sue the drawer more than six years after the dishonor of the paper, although tt much less time had elapsed since his own liability had been enforced. It was urged that the payee could not sue on a note which he did not hold, and that no action therefor accrued to him until he was damnified. But the Court of Queen's Bench held, nevertheless, that the statute ran from the dishonor. This could only have- been upon the ground that any of the parties might have taken up the paper and thus obtained a right of action. In Clayton v. Gosling, 5 B. & C. 360, a note payable twelve months after notice had not been presented before the maker went into bankruptcy. The ques- tion came up whether it was provable under the commission as an existing debt due, and it was held provable. The court, however, placed the decision upon the ground that, inasmuch as the note con- tained the words "for value received," it was an admission of an existing debt, and might be regarded as security for it. This is a far-fetched reason, which shows hdw far it was deemed proper to go to prevent a failure of justice. In the United States there have been some incidental recog- nitions of the doctrine of Holmes v. Ker- rison; Thrall v. Mead, 40 Vt. 540, Stan- ton V. Estate of Stanton, 37 id. 411, and Wolfe V. Whiteman, 4 Harr. (Del.) 246, appear to adopt it. In New York there are dicta to the same effect in Wenman V. Mohawk Ins. Co., 13 Wend. (N. Y.) 267; Bruce v. Tilson, 25 N. Y. 194, and Rowland v. Edmonds, 24 id. 307. No such point arose in any of these cases, and the actual decision in each of them is, in our opinion, diffionlt to harmonize with any such principle. In Morrison v. MuUin, 34 Penn. St. 12, it was held that, where a demand was necessary to found § 118.] WHEN STATUTE BEGIKS TO BtTN. 319 able in thirty days after its date, and that the statute then commenced to run thereon, unless a demand had been made thereon within six years from its date. In that case the note was dated Oct. 16, 1867, and was as follows: "Thirty days after demand, I promise to pay Jonathan Palmer fifteen hundred dollars, value received, without defalcation." No demand was made upon the note until May 22, 1874, from which date interest was allowed. The lower court held that the statute did not begin to run until thirty daj-s after demand was made, and the plaintiff had a verdict, which, however, was set aside bj' the Supreme Court upon the ground that the note became due, and the statute com- menced to run thereon, thirty daj's from the date of the note. " Taking this note," saj's Campbell, J., "as it reads, and as it is established by the finding being payable without interest, it is impossible to assume that it was intended to run for an^y considerable time. The fair inference is, that it was given for some debt or other consideration on which an immediate liabilitj' existed, which the maker of the note expected to be readj' to meet on reasonable notice, which was fixed at thirty days. If the note had been negotiable, and indorsed over, auj- long delay to present it would unquestionably have released the indorser. " If the judgment is correct, it can only be so because, bj- the terms of the contract, the holder had a right to postpone the maturity of the debt so long as he chose to do so. For if the debt did not become - paj'able until fixed b^' demand, and the demand was optional with the creditor, no tender could be made which would bind him, and he could keep the debt alive in spite of the debtor for an indefinite period. If there was anj* iufirmitj' in the consideration, or any defect in the bind- ing character of the consideration, or anj- defect in the character of the obligation, he might retain it until all testiraon}- was lost, and defeat the defence. This is the mischief which the statutes of limitation were intended to remedy. If this case is not within them, it is not because it ought not- be corered by them." But this case, as well as the an action upon, the demand wa3 tarred act fix the time of payment. It is no unless made in six years, and the right stretch of language to hold that a cause of of action extinguished by the delay. action accrues for the purpose of setting "We cannot but think this to be the statute in motion as soon as the cred- sound doctrine; whatever may have been iter by his own act, and in spite of the the ancient prejudice against statutes of debtor, can make the demand payable. It limitation, they are now regarded as just, may be otherwise, possibly, where delay is and entitled to be fairly construed. If a contemplated by the express terms of the creditor haa the means at all times of mak- contract, and where a speedy demand in" his cause of action perfect, it would be would manifestly violate its intent. But iinjnst and oppressive to hold that he where no delay is contemplated, the rule is could postpone indefinitely the time for just and reasonable; and the presentment enforcing his claim by failing to present it. should be reasonably prompt, or the cred- He is renllyand in fact able at anytime to itor should be subjected to the operation bring an action, when he can by his own of the stfttnte." 320 STATUTES OF LIMITATION. [chap. X. Pennsylvania case, relied upon by the court,^ are put upon the equi- table ground of laches, and cannot be said to express a strictly legal rule. Even though the Michigan case could be said to express, in the view of the court, a strictly legal rule, it can be entitled to little weight in view of the recent decision of the English courts of a similar ques- tion adversely to their views, ^ and also in view of the fact that the Supreme Court of Maryland, which deservedly ranks among the first courts in this country in point of learning, ability, and authority, has also held, in conformity with the doctrine previously stated in the text, that, where a note or contract is payable or to be performed a certain number of days, weeks, months, or years after demand, a right of action does not accrue, or the statute begin to run, until after demand." 1 Morrison t>. Mullin, 34 Penn. St. 12; also Pittsburgh, &c. E. R. Co. v. Ryers, 32 id. 22. This doctrine works a practical abrogation of the contract of the parties, and, in our judgment, is a misapplication of the statutes, and one never contem- plated by the legislature. When a person gives a note payable one day after demand, a term of credit is thereby agreed upon, optional with the creditor, and subject only to the single condition that he shall give the debtor one day in which to raise the necessary funds ; and this contract being within the power of the parties to make, is binding upon them. For the courts to say that the creditor is bound to make this demand within the time pre- scribed for the limitation of the debt, if no condition existed, and that upon a failure to do so he shall lose his right to recover the debt at all, is not a fair application of the statute to the contract actually exist- ing, but is an assumption of authority by the court not only to make a new contract for the parties, but also to improvise a statute of limitations to cover a case not contemplated by or embraced in that cre- ated by the legislature. It is true that the purpose of the statute is to discourage stale demands, but it was not intended to prevent the parties from agreeing upon any term of credit, however long. The intima- tion that delay upon the creditor's part to make demand within a certain time operates as a virtual fraud upon the debtor is too absurd to demand notice. If the debtor desires to pay the debt at any time, he can do so ; and if he fails to do so within six or any other number of years, the reasonable presumption is that it was because it was inconvenient for him to do so; and yet the application of the doctrine stated in the Michigan case imposes a pen- alty upon the creditor, to wit, the loss of his debt, because he has extended to the debtor the accommodation he desired, and that too when the debtor retained the money free from interest. As, however, the doctrine embodied in this case is op- posed to all the authorities which may be regarded as authoritative, and, in our judgment, is an erroneous construction of the contract of the parties, and has no foundation in reason or principle, we will not pursue the matter further. Thorpe v. Booth, Ry. & M. 388; Sutton v. Loomer, 7 B. & C. 416 1 Sturdy i>. Henderson, 4 B. & Aid. 692; Clayton v. Gosling, 5 B. & C. 360. In Wolfe v. Whiteman, 4 Harv. (Del.) 246, it was held that a note payable "on" or "after sight" did not become payable until after demand is made ♦for payment. In Wenman v. Mohawk Ins. Co., 13 Wend. (N. Y.) 267, it was held that a note payable at a given time after demand, is actually made, and that the statute does not begin to run until demand is actually made. See also Wright v. Ham- ilton, 2 Bailey (S. C), 61. In Little i>. Blunt, 9 Pick. (Mass.) 488, countenance ia also given to this doctrine. See post, chap- ter on Bills and Notes. 2 Brown i». Rutherford, 49 L. T. x. s. 669. ' Ehind v, Hyndman, 54 Md. 548. In this case, Bartol, 0. J., in th« course of an able opinion, in which he critically re- views the cases, and the grounds upon which they stand, says: "To determine the second question we must refer to the § 118.] WHEN STATITTE BEGINS TO EtJN. 321 In that case A., B., and C, by a contract made jointly with D., on the 29th of March, 1875, agreed, for the consideration stated therein, to language of the statute. This provides that ' the action shall be commenced or sued within three years from the time the cause of action accrues.' 1 Code, art. 57, § 1. The contract sued on in this case was to be performed 'on or after the fif- teenth day of October, 1875, when the same should be demanded.' The cause of action therefore did not accrue until de- mand was made. According to the terms of the statute, limitations would begin to run from that time. This has been repeat- edly decided. In King v. Mackellar, 109 N. Y. 215, it happened that in 1871, plaintiff, a woman of limited means, and a cousin of the defendant, intrusted to him $3,000, under an agree- ment that he should invest the same for her upon bond and mortgage. The defendant had previously purchased certain property in the city of New York, and taken the title in his wife's name. He was at the time negotiating an exchange thereof with one S. for other lands, The defendant's wife conveyed the lots to the wife of S., who in turn conveyed to the defendant's wife such other lands and executed to her a bond, secured by a mortgage of §8,000 upon the New York lots, subject to a prior mortgage of §6, 000. After the exchange had been consummated the defendant caused his wife to execute an assignment to the plaintiff of the $3,000 mortgage, and he retained the $3,000 so intrusted to him. The mdrtgage was recorded but the assignment was not. None of the papers were exhibited or delivered to the plaintiff, and she had no information of the transactions until 1878, In an action to foreclose the prior mortgage the defendant's wife was made a party defend- ant, as the recorded holder of the second mortgage, and she appeared by their son, a lawyer. Upon the sale in the fore- closure suit, which occurred in 1877, there was a deficiency, and the lien of the second mortgage was extinguished except as to about twenty feet of the rear of the lot Early in 1878, when plaintiff had learned the above facts, the defendant promised to protect her from loss, and he obtained from the wife of S. a deed conveying the TOL. I. — 21 twenty feet not covered by the first mort- gage to a relative of the plaintiff, as for- security. This deed, with the bond and mortgage and assignment, were handed over to the plaintiff late in the year 1878 ; but she shortly after returned them to the defendant with a demand for a repayment. of her money. Defendant had, down to 1878, collected and paid the plaintiff the interest on the moi'tgage. In an action brought to recover the |3,000, the trial judge found that plaintiff was ignorant of' the forms and methods of making such investments, and relied wholly upon the- defendant, and that the obligor in the bond secured by the second mortgage had no-, separate or other estate, except that con- veyed to her in the exchange of properties, between defendant and her husband. Upon the trial, the plaintiff made a ten- der, without objection being made, of a deed of the twenty feet. It was held that, the plaintiff was entitled to recover ; that there w,as, in fact, no investment of the- money as agreed, but that if the assign- ment of the mortgage could he considered as an investment, it was an improper and', an insecure one, and so was without the- soope of defendant's agency, and could be treated by the plaintiff as null ; also, that, there was no ratification by the plaintiff' of defendant's acts, and no waiver of her right of action; and that the plaintiff's, right of action arose when she, with know- ledge of the facts, elected to revoke the defendant's authority and to disaffirm his. acts, and upon her demand for a return of the money, from which time the statute- of limitations only began to run. No demand was alleged in the com- plaint J but demand was proved without objection, and there was no demuner ^o-, the complaint. Held, that the omission., of the averment was not available as an. objection here ; also, that it would have- been competent for the court to admit evideneeof demand on the trial, if objection! had been raised, allowing an amendment; of the complaint. The fact that the com- plaint states matters belonging to the province of the trial, t. «., details of proof showing the sham or mock nature of the 322 STATUTES OF LIMITATION. [chap. X. transfer to D., on or after the fifteenth daj- of October, 1875, shares of certain stock sufficient to amount to $500, at the market price of said stock, when the same should be demanded. A demand for the transfer was made July 11, 1878, and the action was brought June 19, 1879. Under the Maryland statute of limitations actions upon simple contracts are barred in three years. The defendant set up in this plea "that alleged investment and the methods adopted by the defendant to disguise his Tetention of the money, did not constitute a material defect. The provision of the code declaring that when a right of action exists, growing out of the receipt or detention of money by a "person acting in a fiduciary capacity," the time -within which an action must he commenced "must be computed from the time when the person having the right to maliethe demand has actual knowledge of the facts upon which that right depends," created no new rule of law, but was simply a codification of the law as it then existed. " In Holmes v. Kerrison, 2 Taunt. 323, in the King's Bench, the note sued on was payable after sight; it was held that suit was not barred till six years after it had been presented for payment. A similar decision was made in Topham v. Bradick, 1 Taunt. 571 (in the Common Pleas). These decisions were followed by Thorpe :v. Combe, 8 Dow. &. Ey. 347, where the note, dated in 1810, was payable two years after demand. It appeared that • demand was made on the eighteenth day of June, 1823. Baylet, J., said : ' I am clearly of opinion that the statute of lim- itations did not "begin to run until two years after demand of payment of this note had been made. Here the cause of action did not arise until the two years after demand had elapsed, and consequently the statute affords the defendant no pro- tection!' The other judges concurred. "The doctrine of Holmes v. Kerrison has been often recognized in this country. Stanton v. Estate of Stanton, 37 Vt. 411j Thrall v. Mead, 40 id. 540; Little v. Blunt, 9 Pick. (Mass.) 49 ; Wenman v. Mohawk Ins. Co., 13 Wend. (N. Y.) 267; Wolfe V. Whiteman, 4 Harr. (Del.) 946. Other cases might be cited. In Fells' Point Savings Institution v. Weedon, 18 Md. 326, on a certificate of deposit pay- able on demand, it was said, 'the stat- ute began to run when demand was made.' In support of a different doctrine, the counsel for appellees have cited several cases, in which it has been held that where the contract is to be performed on demand, if the demand be unneces- sarily delayed beyond the time limited by the statute, the action will be barred. Thus, in Pittsburgh & Connellsville R. E. Co. V. Ryers, 32 Penn. St. 22, which was a suit to recover upon a subscription to stock, the court said, although the stat- ute of limitations does not begin to run against a subscription to the stock of a railroad company till after calls are made for instalments, yet when no call is made for more than six years from the date of the subscription, the law will presume an abandonment of the enterprise, and, from analogy to the statute, bar the recovery. So in Morrison v. MuUin, 34 Penn. St. 12, it was decided that ' where a demand was necessary to found an action upon, the demand was barred unless made in six years, and the right of action extinguished by the delay. ' "That decision was followed and approved in Palmer v. Palmer, 36 Mich. 487. " The cases in Pennsylvania and Mich- igan were not strictly decisions at law Qn the construction of the statute ; they were decided by courts exercising equitable ju- risdiction,and consequently stand upon dif- ferent grounds, like Codman i;. Rogers, 10 Pick. 112, and Little v. Blunt, 9 id. 490, cited by the appellees, where the equitable doctrine of laches was applied. In Little V, Blunt the legal rule was recognized. The court say, ' But if the promise had been of a collateral thing, which would create no debt until demand, it might be otherwise. It is clear that where no action will lie without a previous demand . . . in all such cases no cause of action accrues until after demand made, and the statute of limitations will begin to run from the time of the demand, and not from the time of the promise. This distinction is obvious and will reconcile all the cases.' " § 118.] "WHEN STATUTE BEGINS TO tiVS. 323 the said stock was demandable by the said plaintiff immediately after the fifteenth day of October, 1875, and it was the duty of the plaintiff to demand the same within a reasonable time after said fifteenth day of October, and more than three years expii-ed after the end of such reasonable time for making sard demand and before the bringing of this suit." To this plea the appellant demurred, the demurrer was overruled, and judgment entered for the defendants, which was reversed by the Supreme Court, upon the ground that the right to demand the stock was not barred bj' the lapse of three years before the same was made, and that the statute did not begin to run upon the claim until demand was made. The statute does not begin to run in favor of a bailee, or of a person who borrows goods for an indefinite time until he denies the bailment and converts the property.' Nor does it run against an action bj' the mortgagor of chattels to redeem until the possession of the mortgagee becomes adverse, and this is so although an action for the debt secured by the mortgage is barred.^ The statute does not begin to run in favor of the borrower of stock until after the demand is made,° nor against the right of the owner of stock to the dividends thereon.* Where a contract is made to do an act which it is evident it was not intended by the parties should or would be done until certain other things were done, the statute does not begin to run until a reasonable time after such other things are done. Thus, where a railroad company agreed with a land-owner to construct a crossing so as to enable the owner of land cut off from the rest of his tract by the company's pro- posed road to reach it for the purposes of cultivation, to construct such crossing, and in an action for the breach of such contract set up the statute of limitations as a bar, it was held that the statute did not begin to run upon the contract until a reasonable time after the railroad was constructed.' Where a note is made payable in a specified time, containing a pro- vision that it shall become due when certain things are done, it does not become due, nor does the statute begin to run, until such things are done, whether the six months named in the note have elapsed or not.? Where an accommodation maker of a note pays it or a part of it, his rifht of action against the payee accrues at the time of such payment, and the statute begins to run from that time.' Dividends which are declared on stock in a corporation are payable on demand, and the statute does not begin to run against the person entitled thereto until -demand is made.' ' 1 Eeizenstein v. Marquardt, Iowa, 1892. 6 Robertson v. Gates (Tex.), 12 S. W. 2 Shucraft v. Beard, Nev. 1892. 54. _ 3 Parker v. Gains (Ark. ), S. W. 693. ' Frank v. Brewer, 7 N. Y. S. 92 ; ' * Louisville Bank v. Gray, 8i Ky. Goodenough v. Wells, 76 Iowa, 774 ; 565. ■ Harvey v. I. & S. Co., 60 Vt. 209. 6 International, &o. R. B. Co. v. Pape, ' Arnaut v. New Orleans, &c, E. R. 73 Tex. 501. Co., 41 La. An. 1020. 324 STATUTES OF LIMITATION. [CHAP. X. So where property is in the hands of one tenant in common, as his possession is treated to be the possession of his co-tenant, the statute does not begin to run until the co-tenant has made a demand for his share of the property, or his rights have been denied.^ So where property has been loaned to another, the statute does not begin to run until its return has been demanded.^ As to the right to recover stolen property, the same rule prevails, be- cause until such demand the possession is, in contemplation of law, in the owner.' Upon a deposit of money to be accounted for on request or payable on demand, the statute does not begun to run until demand is made,* And the same is true where money is loaned under a contract that it shall be payable after notice of intention to withdraw it. The stat- ute does not begin to run against the lender until demand is made therefor.^ Where a contract or note is payable in specific articles or in services or in anything but money, the statute does not begin to run until de-! mand for payment is made.' Where a note is payable a certain number of days after the happen- ing of a certain event, the statute does not begin to run until the prom- isee has actual knowledge or notice of the happening of that event, or until such time when by the exercise of ordinary diligence he ought to have had notice thereof.' Sec. 119. Q-eneral Rules as to vrhen there is a Condition Precedent, -^By sec. 3 of the statute of James it is enacted that the different periods within which the remedies for the cases provided for are to be pursued are to be reckoned (except as to slander) from the time the respective causes of action accrue, and this is the provision in all of our statutes, except that no exception is made as to actions for slander.' This would, undoubtedly, be so independently of the statutory provision. * 1 McClure v. Colyear, 80 Cal. 378. tionto recover such an overcharge. Good- 2 Fry V. Clow, 50 Hun (N. Y.), 574 ; ell w. Brandell Nat. Bank, 21 Vt. (Atl.) Rives V. Nye, 44 N. W. (Neh.) 736. 956. In Massachusetts, it has been held '■> Duryea v. Andrews, 58 Hun (N. Y.), that the statute does not begin to run in 607. favor of a bank in which deposits are made * Sheldon v. Sheldon, 58 Hun (N. Y.), until there has been something equivalent 601. The statute will not begin to run to a refusal on the part of the bank to pay against a claim for interest on deposits, or a denial of liability. Dickenson v. agreed to be credited semi-annually by Leominster Savings Bank, 152 Mass. 49. the bank, until notice is given to the de- ' Atkinson v. Bradford, &c. Society, positor that the bank has ceased to credit L. E. 25 Q. B. D. 377. such interest. Marion National Bank v. ^ Weymouth v. Gile, 83 Me. 437. Fidelity, &c. Co., 12 Ky. L. R. 492. It ' Hall v. Roberts, 58 Hun (N. Y.), 539. has been held in Vermont that a check 8 Banks u. Coyle, 2 A. K. Mar. (Ky.) drawn upon a bank for the whole balance 564 ; Hull v. Vandergrift, 3 Binn. (Penn.) shown on a deposit book, is not a demand 374 ; Jones v. Conway, 4 Yeates (Penn,), upon a bank for the amount of the over- 109 ; Oden v. Greenleaf, 3 N. H. 270 ;. charge for a check previously drawn which Riohman v. Riohman, 10 N. Y. L. 114; will set the statute running against an ac- Raymond v. Simonson, 4 Blaokf. (Ind.) § 119.] WHEN STATUTE BEGINS TO EUN. 325 It becomes, therefore, necessary in eacli case to consider, with refer- ence to the statutes of limitation, at what time the cause of action 77 ; Mayfield v. Seawell, Cooke (Tenn.), 437 ; Stewai-t v. Durett, 37 B. Mon. (Ky.) 113 ; Hai-dee v. Dunn, 13 La. An. 161 ; Withere v. Riohaidson, 5 T. B. Mon. (Ky.) 94 ; Ferris v. "Williams, 1 Ciuncli (U. S. C. C), 475 ; Davis v. Eppinger, 18 Cal. 878. This is substantially tlie rule of the civil law, as under that prescription does not begin to run until the creditor has a full and perfect right to prosecute his de- mand. Evans's Potbier, 404. This rule prevails equally at law and in equity. 2 Story's Eq, Juris. § 1521 a. In Bruce v. Tilson, 25 N. Y. 194, the court held that the statute begins to run from the time when the plaintiff might have brought his Equitable action, and is charged with no- tice that his right is denied. Time will commence to run in the defendant's favor from the date when a cause of action ac- crued, even although from any cause, such as poverty of the defendant, an action would then have been fruitless. Emery V. Day, 1 C. M. & R. 245. And a cause of action accrues when work is done, al- though it may be that the parties cannot get satisfaction until afterwards, Worm- well V. Hailstone, 6 Bing. 668; though of course it may be otherwise where there is a special contract as to time of payment, Wittersheim v. Lady Carlisle, 1 H. Bl. 631. So in cases of mistake, time runs from the date of the mistake, not from the date of discovery. Thus, when a personal representative found among the papers of the deceased a mortgage deed, and assigned it more than six years before the action for the mortgage money, reciting in the deed of assignment that it was a mortgage deed made, or mentioned to be made, between the mortgagor and mort- gagee for that sum, the assignee was not allowed to recover, although it turned out that the mortgage deed was a forgery, and the assignee did not discover the forgery until within six years before the action. Bree v. Holbech, 2 Doug. 634. When a right becomes complete, a right of action accrues, and from that time — and only from that time, except in cases where a statutory disability exists, or the claim is brought under some of the statutory exceptions — the statute begins to run. Eichman v. Eichman, 10 N. J. L. 114; Banks v. Coyle, 2 A. K. Mar. (Ky.) 564 ; Raymond o. Simouson, 4 Blackf. (Ind. ) 77 ; Jones v. Conway, 4 Yeates (Penn.) 109 ; Mansfield v. Seawell, Cooke (Tenn.), 437 ; Odin v. Greenleaf, 3 N. H. 270 ; Hardee v. Dunn, 13 La. An. 161 ; HaU V. Vandergrift, 3 Binn. (Penn.) 374 ; Withers v. Richardson, 5 T. B. Mon. (Ky.) 94. Whenever the contract of the defend- ant is not absolute in the first instance, for the performance of some pailicular act or duty, but is dependent upon some con- dition precedent, or something to be done on the part of the plaintiff or some third person, the cause of action does not arise until the condition has been accomplished, because, until those events occur, no right to sue exists. Fenton v, Emblees, 1 W. Bl. 353 ; Savage v. Aldren, 2 Stai'k. 232. So where a bond or other obligation is given, payable after the death of a certain person named, the statute does not begin to run until such person's decease, no mat- ter how long a time may have elapsed since the bond or obligation was executed. Tuckey v. Hawkins, 4 C. B. 664; Sanders ■0. Coward, 15 M. & W. 56. So where a contract for services provides that payment shall be made by a provision in the em- ployer's Tvill, a right of action does not accrue until after the employer's death, because up to that period there has been no breach. Nimmo v. Walker, 14 La. Aii. 581. And so generally, when a party stands in a position that he can enforce a claim by an action at law; the statute from that moment attaches and begins to mn thereon. Amott v. Holden, 2i! L. J. Q. B. 19 ; Blair v. Ormond, 20 id. 452 ; White- head V. Lol'd, 21 L. J. Exch. 239 ; Bill v. Lake, Heti. 138 ; Howland v. Cuykendall, 40 Barb. (N. Y.) 320 ; Bowler v. Elmore, 7 Gratt. (Va.) 385. When a particular date for the completion of a contract is agi-eed upon, a right accrues at that date. Helps V. Winterbottom, 2 B. & Ad. 431 ; Shutfohi V. Borough, Godb. 438 ; Irving V. Veitch, 3 M. & W. 110 ; Wittersheim i>. Carlisle, 1 H. Bl. 635. 326 STATUTES OF LIMITATION. [chap. X- arose, — a question which is not seldom one of diflSculty. Adopting the rule that a cause of action, or, as perhaps should be said, a com- plete cause of action, is the necessary point of commencement, time will not commence to run in case of a contingent promise until the event has happened on which the contingency depends. Thus it is said by a writer, whose quaint yet instructive illustrations are valuable, that if a man promise to pay £10 to J. S. when he is married or when lie comes from Rome, and ten j-ears after J. S. is married or returns fioin Rome, the right of action accrues upon the happening of that contingency, and from that time the statute will commence to run, and not from the earlier date of the promise.'' The rule may be said to be, ' Bac. Abr. Lim. 230, D. 3 ; Savage v. Aldreu, 2 Stark. 232 ; Feiiton v. Emblei-s, 1 AY. Bl. 353; Jones i'. Lightfoot, 10 Ala. 17. In O'Hara v. State of New York, 112 N. Y. 146, it was held that iu the case of an imperfect claim or obligation which is unenforceable by reason of some vice or defect therein, which may be cured or waived by the debtor, a right of action arises thereon at the time the claim be- comes purged of the vice by the action of the debtor, and not before. McDougall V. State, 109 N. Y. 80, distinguished. Thus, where a person has voluntarily furnished property or ren- dered valuable services to the State at the request of State officers and for State purposes, but with expectation of payment for the same, the legislature may ratify the acts of such officers, al- though previously unauthorized, and thus create a legal liability on the part of the State. An act of the legislature, supplying defects or omissions in pre-existing legis- lation, whenever a liability may be predi- cated against the State, is not the audit or the allowance of a claim ; and so is not obnoxious to the provisions of the State constitution prohibiting the audit or allow- ance by the legislature, of any private claim or account against the State. Upon a claim filed against the State for services performed and materials furnished under the direction of the quarantine offi- cials in the years 1875 and 1876, in the repair of steamers and other property of the State used for quarantine purposes in the harbor of New York, it appeared that the claimant brought suit against the health officer for the amount of the claim, and was defeated upon the ground that that officer had incurred no pei-sonal lia- bility, and that the claim was against the. State. Thereupon, in 1878, claimant filed his claim against the State before the Board of Audit which, upon a hearing thereon, decided that the State was not liable therefor, and so dismissed the claim. Application was thereafter made each year to the legislature for relief up to 1886. In that year an act was passed authorizing the Board of Claims to rehear, audit, and determine the claim, and to award such sums as should be a reasonable compensa- tion for the work and services. It was held that this act was not violative either of the Constitutional provision above re- ferred to or of the provision prohibiting the legislature or any person acting in behalf of the State from auditing, allow- ing, or paying any claim which, as be- tween citizens, would be barred by la^e of time ; that prior to the passage of said act of 1886 no legal claim, enforceable m any court, existed against the State for the demand in question ; that by said act the action of the quarantine officials was adopted and approved, and so for the first time the claim had a legal existence against the State, and the cause of action then arose ; and tjhat the value of the materials furnished, constituted a part of the claim, was fairly within the spirit of the act, and was properly allowed. In Budd V. Walker, 113 N. Y. 637, in an action for an accounting as to moneys alleged to have been placed in the hands of S., the defendant's testator, bj' the plaintiff for investment, the only evidence presented was a letter from S. to the plain- § 119-] WHEN STATUTE BEGINS SO EUN. 327 that whenever the contract of the defendant is not absolute in the first instance, because of something to be done by the plaintiff or some third person as a condition precedent, the cause of action does not arise until the condition has been accomplished or the precedent act per- formed.^ In such cases the cause of action does not commence from tiff, which after acknowledging the receipt of the money and that it was drawing interest at seven per cent, continued as follows : " If I can find an opportunity of purchasing a mortgage . . . where I can, without risk, secure a greater profit, I shall do so, unless you wish to make any other use of tlie money; should you desire to use it, please let me know." It was held that the relation of the plaintiff to the decedent was that of a creditor upon a simple contract, not that of a beneficiary under a trust, that the amount was paya- ble at once and the statute of limitations then began to ran, and after the lapse of six years was a bar to the action. In Thacher v. Hope Cemetery Ass'n, 126 N. Y. 507, the defendant, a cemetery association, borrowed moneys of various persons, iasjiing to them certificates, by which, after certifying that the persons named each had, at the date thereof, loaned to it the sums stated, it agreed that one-half of the proceeds of sales of lots in its cemetery should be applied to the payment of the sum loaned and interest. With the moneys so borrowed it purchased land, laid it out into lots, and improved it as a cemetery. In an action upon one of the certificates it appeared and was found that the defendant received from the sales of lots, a sufficient sum, applicable by the terms of the certificate to its payment, more than ten years before the commencement of the action. It was held that the action was barred by the statute of limitations, and this, although the court found that neither S., the plain- tiffs testator, to whom the cei-tificate was issued, nor the plaintiff had knowledge more than six years before the action was commenced of the facts as to the receipt of money applicable to the payment of the loan ; that by the terms of the certificates the defendant did not become a trustee for the holders, and no trust was created of any kind ; but assuming they did not cre- ate a general obligation to pay the sums borrowed, as to which queers, but only cre- ated an obligation to pay the loan out of moneys received from the sale of lots, such moneys did not in any sense belong to the holders of the certificates, but belonged to it, and when it failed to apply the proceeds as stipulated, it became liable to an action at law for breach of its eonti'act obliga- tions, and such an action was barred by the statutes after six years. If, from facts peculiar to the case, an eijuitable action could have been commenced, it would have been necessary to commence it within ten years from the time the cause of action accrued. . Elmore, 7 Gratt. (Vsu) 3S5, it sequently the note became due from that was agreed between the maker and holder time. Van Hook v. Whittock, 3 Paige of a note that the maker should keep it (S^. Y.) Ch. 409. unta his liabUity, as baU for the holder In Jlcllaster v. State of Is'ew York, 103 was determined ; and it was held that the N. Y. 547, it was held that contracts statute did not begin to run antil the made under and in pursuance of the act maker's liability, as bail, had ceased, of 1870, oi^anizing "the Buffalo State « Eyer ». Stockwell, 14 Cal. 134. Asylum, for the insane " for famishing ' Emmons v. Hayward, 6 Cash. (Mass.) materials for the constructiou Of buildings, 501. S30 STATUTES OF LIMITATION. [CHAP. X. sented their account May 23, 1848. In an action upon the agreement the defendant set up the statute of limitations, and claimed that the de- mand was not made upon him within a reasonable time ; but the court held that, as the defendant controlled the happening event upon which the right to make a demand depended, and b3' his own act had post- poned it, he was estopped from claiming that the demand was unrea- sonabl3- delaj-ed, and that the statute did not begin to run until the demand was made.^ Where a person consented to paj^ the expenses of a suit, in consid- eration of the promise of another person to paj- a part of them " when ascertained," it was held that the statute did not begin to run until the promisee had actually paid the expenses.^ So where an attornej' agreed to prosecute a claim, collect it, and take his pay out of the amount col- lected, it was held that the statute did not begin to run until the claim was collected.' But, in order to postpone the running of the statute upon a claim paj-able upon a contingencj-, the contingency must be such as postpones or suspends the right of action, or the statute will run from the date of the contract.^ The same rule prevails where the law raises or implies a condition, as in the case of monej' deposited in a bank ; * and in such cases the statute does not begin to run until the implied condition has been performed. Sec. 120. Contracts for Services. — Under an ordinarj' contract for services for a stated period, whether long or short, no time for payment being agreed upon, the right of action accrues immediately upon the completion of the term of service.^ But if services are rendered for ' In Pennsylvania, it is held that, where Where a note is given, payable in " stone- a demand is necessary to complete a right work," the note is not due until the work of action, it must he made within six years is called for. Lincoln v. Purcell, 2 Head from the date of the contract. Morrison (Tenn.), 143. V. MuUin, 34 Peun. St. 12. But we do not * Motley v. Montgomery, 2 Bailey apprehend that even this rule militates (S. C. ), 544. Upon a loan of money, to against the doctrine of the Massachusetts he repaid on demand, the statute runs case, because in that case a demand could from the date of the loan. Cook v. Cook, not be made until the event transpired 19 Tex. 434. upon which the right to make it de- ^ Payne v. Gardner, 29 N. Y. 146, jiended. Nor, indeed, can the doctrine of ^ Bill v. Lake, Hetl. 138 ; Wood's Mas- the Pennsylvania case be applied where ter and Servant, § 83 ; Little v. Smiley, 9 the demand in express terms is post- Ind. 116 ; Zeigler v. Hunt, 1 McCord poned for more than the statutory period, (S. C. ), 577; Kankin ii. Woodworth, 3 as, to a note payable " ten years after de- Penn. St. 48 ; Van Horn v. Scott, 28 id. mand, demand not to he made for ten 816. years," beoau.se the express terms of the In Brundage v. Village of Port Chester, contract must control. 102 N. Y. 494, the plaintiff made a de- 2 Darwin v. Smith, 35 Vt. 69. See mand upon the defendant's treasurer for also Perkins !>. Littlefield, 5 Allen (Mass.), the payment of an indebtedness due from 370, where a judgment was confessed for a the defendant to him for work and labor, sura to be assessed by the clerk, it was This the treasurer refused unless the plain- held that the statute did not begin to run tiff would consent to deduct from the sum until the sum was so ascertained. Wills v. due him the amount of an illegal assess- Gibson, 7 Penn. St. 154. ment upon his property, which assessment » Morgan v. Brown, 12 La. An. 157. had been set aside. The plaintiff con- § 120.] WHEN STATtTTB BEGINS TO RUN. 331 several years under a general agreement, and no term of service is agreed upon, it will be treated as a hiring from year to year, and the wages will become due and the statute begin to run as to each year's service at the end of each year.'' If a person is employed by the da}-, week, or month, and is to be paid therefor at the end of each daj-, weelr, or month, a right of action accrues, and consequently the statute begins to run at the end of each day, week, or month, as the case may be, and will bar that part of the wages which accrued more than six years before the action was brought, although the service continued for sev- eral years. ^ If under a contract to build a house, vessel, or in fact to do any species of work, extra services are rendered or extra expense is incurred for which the party is entitled to have extra compensation, and no time of payment for such extra work, &c., is agreed upon, the statute commences to run against the claim for such extra work, &c., from the time when the work is completed.* If services are rendered on a promise that certain property, or a certain amount of property, shall be devised to the person rendering them, by the wiU of the person for whom they are rendered, a right of action for such services does not accrue until after the death of the promisor ; * and it has been held sented to accept such balance, which was paid to him. In an action brought more than six years thereafter, in form to re- cover back the amount so deducted, as for money had and received by the plaintiff for the defendant, held, that the plaintiffs only cause of action was for the balance of the original indebtedness, which was not discharged by the action of the treasurer, but was barred by the statute of limita- tions, 1 Davis V. Gorton, 16 N. Y. 255. In this case the plaintiff rendered services for the defendant for thirteen years, in the management of a farm, under a general agreement in which the price, but not the term of service, was fixed. The court held that the hiring was to be treated as a gen- eral luring from year to year, compensation becoming due at the end of each year, and that a recovery could only be had for wages that had accrued within six years from the commencement of the action. But if con- tinuous services are rendered under an en- tire contract, as for two, five, or any number of years, and no time for payment is fixed, the statute does not begin to run untU the termination of the relation between the par- ties. Schack V. Garrett, 69 Penn. St. 144. In Hall V. Wood, 9 Gray (Mass.), 60, in an action for work and labor, the bill of par- ticulars contained some items which bore date more than six years before the com- mencement of the action. The court held that an action might be maintained for the full amount, notwithstanding the stat- ute of limitations, if the whole work was done under an entire contract. In re Gardner, 103 N. Y. 533, it was held that where one person enters into the employment of another without any express agreement as to the time of service or measure of compensation, in the absence of any proof of usage, it is to be consid- ered as a general hiring ; but no agreement can be implied that compensation shall be postponed until the termination of the employment ; and where the employment has continued for a long period of time, and there are no mutual accounts between the parties, the statute of limitations is a bar to a claim for more than six years of services in such employment, unless it appear that payments have been made to apply thereon within the six years, in which case a recovery is proper for a period beginning six years prior to the first of said payments. 2 Butler V. Kirby, 52 Wis. 62 : Davis ». Gorton, 16 N. Y. 235 ; Turner v. Mar- tin, 4 Eobt (N. Y. Superior a.) 661; Mims V. Sturtevant, 18 Ala. 359 ; Phillips V. Bradley, 11 Jur. 264. ' Peck V. New York Steamship Co., 5 Bosw. (N. Y. Superior Ot.) 226. * Bash V. Bash, 9 Penn. St. 260 ; Price 832 STATUTES OF LIMITATION. [CHAP. X. that even though the services contracted for are not completed, because the person is prevented bj' the promisor, the rule is the same, and the right of action does not accrue or the statute begin to run until the death of the promisor ; but if the agreement as to the devise is not performed, a recovery may then be had from the estate of the deceased for the value of the services rendered.^ But this is hardly believed to be the true rule, especially where the person emploj-ed under such a contract is vrrongfullj' discharged from the service ; and, in a late case in New York, it has been held that under such circumstances the servant's right of action upon quantum, meruit accrues immediately upon the dis- charge, and is barred in six years from that date, and this would seem to us to be the true doctrine.^ But if the contract is entire, and the employer has not in fact discharged the servant, but simph' neglects to employ him, the remedy does not become complete until the contract is ended by the death of the employer. Where a person who contracts to render services under an entire con- tract dies before the contract is completed, bj"^ the death of the servant the contract is ended ; but a right of action does not accrue so as to bar an action for the wages, until an administrator is appointed upon his estate.' But where a person employed under an entire contract is dis- charged before its completion, his right of action for wages already earned accrues at once ; * but his claim for damages does not accrue so as to become complete, and consequently so that the statute will run against it, until the term for which he was originallj- employed was ended ; for while he may bring an action at once for such damages as he has sustained, yet he thereby waives all future damages, and he has a right to wait until the period is ended, and sue for the damages he has actually sustained from the breach of the contract.^ Where a con- tract to do a certain thing necessarily contemplates a reasonable time in which to do it, the statute does not begin to run until a reasonable time has elapsed ; and as to what is a reasonable time is a questioft of fact for the jury.^ Where there is a contract for continuous service, and no time of payment is specified, the wages do not become due so that an action can be brought therefor until the service is ended, and the statute only begins to run from that time.' Sec. 121. Rule as to Services of Attorneys. — This rule, as to entire V. Price, Cheves (S. C.) Eq. 167 ; Jilson «. ' Jones «. Lewis, 11 Tex. 859 ; Hall b. Gilbert, 26 Wis. 637 ; Titman v. Titman, "Wood, 9 Gray (Mass.), 90. In Littler «. 64 Penn. St. 486 ; Riddle v. Backus, 38 Smiley, 9 Ind. 116, it was held that there Iowa, 81. was no error in the foUowiYig instructions : 1 Quackenbush v. Ehle, 6 Barb. (N. Y.) "If the plaintiff performed labor for the 469. plaintiff's intestate, under an agreement 2 Bonesteel v. Van Etten, 20 Hun (N. to be paid therefor, without specifying at Y.), 468. what time such payment should be made, ^ Carney v. Havens, 23 Kan. 82. or hoW long such labor should be per- < Bonesteel v. Van Etten, ante. formed, then the statute of limitations ^ See Wood's Master and Servant, sec. would not commence running until such 125, p. 237, and authorities cited. labor was ended." Schooner ». Vachon, 5 Evans v. Hardeman, 15 Tex. 480. 121 Ind. 3. § 121] "WHEN STATUTE BEGINS TO RUN. 333 contracts for services, is well illustrated in the case of attorneys. It is held that the statute does not run against an attorney's claim for pro- fessional seiTices so long as anj-thing remains to be done by him before final judgment in a ease that he has in hand for his client, or so long as the relation of attorney and client exists in a case.^ In Pennsyl- vania, it has been held that, -where an attorney is employed to coUect a debt, the statute does not run against his claim for services so long as the debt remains unpaid.^ In New York, it is held that the statute begins to run upon his claim for services and disbursements whenever his sei-vices are so brought to an end that he can maintain an action for them.* This point is held to be reached under a general employment when the suit is terminated by the entry of a final judgment ; * and this is so although there may be other charges incidental to the matter, iu' 1 "VValker v. Goodrich, 16 111. 341; Elliot V. Lawton, 7 Alleu (Mass.), 274; Fenno v. English, 22 Ark. 170; Bathgate V. Haskin, 59 K. Y. 533; Davis v. Smith, 48 Vt. 52. In Nohle v. Bellows, 53 Vt 185, D., an attorney, was indebted to B. The two entered into a contract, by which D. was to do B.'s law business at one-half the usnal price, and B. was to let D. have all his bn.siness in one county, except what he should do himself. Soon after the exe- cution of the contract D. formed a law part- neiship with N.; but this contract was not made known to him. B. broke his part of the contract by giving the gi'eater part of his law business to another attorney, and only the smaller part to D. & N. D. & N. charged their usual fees on their company book for what they did for B. A part of the account accrued more than six years before the commencement of this suit, but was for services rendered in suits terminated within the six years. It was held that the plaintiif, as surviving part- ner, is entitled to recover; that the defend- ant should have performed his part of the contract before he was entitled to an ap- plication upon his debt, or a reduction of the account; that the employment of D. was a condition precedent to be performed by the defendant ; that an attorney's em- ployment in a suit is continuoos ; and that the statute of limitations does not begin to run on his account until the case is ended, or he is otherwise discharged. Langdon v. Castleton, 48 Vt. 52. 2 Foster v. Jack, 4 Watts (Penn.), 234. Bat see Lichty v. Hugos, 55 Penn. St. 434; Hale v. Aid, 48 id. 22. » Adams v. Fort Plain Bank, 36 N. Y. 255; Mygatt v. "Wilcox, 45 id. 306. * Elliot -0. Lawton, 7 Allen (Mass.), 274 ; Walker v. Goodrich, 16 111. 341 ; Fenno v. English, 22 Ark. 170. In My- gatt V. Wilcox, 1 Lans. (N.Y.) 55, affirmed, 45 K. Y. 306, the plaintiif, an attorney, rendered services and made disbursements for the defendants upon an accounting be- fore the Surrogate of Chenango County, and upon the appeal from the Surrogate. The plaintiff was employed in 1852. In 1855 a decree was made in which a certain sum was allowed the defendants. In 1858 this decree was reversed by the Supreme Court, and the whole case was ordered to be re- heard by the Surrogate. The case remained in this condition until 1866, when the par- ties settled all differences between them. In 1867 this action was brought, and the court held that the claim was not barred by the statute. " That the plaintiff was retained in this case," said Boardman, J., "and acted before the Surrogate and on appeal, must be conceded. It is equally true that such business as he was engaged in before such Surrogate and on said appeal was not disposed of until 1866, when the same was finally settled by the action of the parties. Upon the conceded factsj I think the law would declare the plaintiff's retainer gen-i enil in the matt«r, and continuing until the final settlement in 1866. Under such circumstances the statute would not run until 1866, and the plaintiff's action is well brought." Whitehead v. Lord, 7 Exch. 691; Han v. Wood, 9 Gray (Mass.), 60. 334 STATUTES OF LIMITATION. [CHAP. X. curred afterwards.^ In the case last cited the plaintiflF, a proctor, sued the defendant for the amount of his bill, which was chiefly for work done in prosecuting an appeal to judgment. After the judgment, a communication had been made by the adverse party to the plaintiff as proctor, and attended to by him, respecting the costs, and an item in respect of this transaction was added to the plaintiff's bill. No pre- vious part of the demand had accrued within six years. It was held that the latter item did not take the rest out of the statute of hmita- tions. "When," said Loed Tenterden, C. J., "the suit was termi- nated by a sentence, there is no doubt that the proctor had a right to call for the amount of his bill. His dutj'' was then concluded, unless something should occur to require his further interference. A letter is, indeed, sent to him in October (the judgment was given in July) on the subject of the costs, and a further charge arises for the perusal and consequent attendance ; but this was mere accident.'' It must be understood, however, that this rule relates to an attorney's bills under a general retainer, so that his services are continuous, and has no application where he is specially emplo3'ed, as to make a brief, or argue a cause, or file a motion, or perform any other special service that does not involve or contemplate any further connection with the case. In the latter instance his right of action is complete as soon as the service is performed. The law fixes an attorney's responsibility to act for his client until the business is disposed of. But the rule is sub- ject to the exception that his relation with the cause may be terminated by notice given by him to his client that he shall cease to act further in that capacity, or by a notice to him from his client that his services are no longer required, in which case his right of action accrues from the time his connection with the case ceases ; ' so also bj' the death of his client.* Another matter must be remembered, and that is, that where there is no special agreement in relation thereto, if an attorney is em- ployed in several causes, his right of action accrues with the entry of final judgment in each of them, and the statute begins to run from that time, and is not suspended by the circumstance that other actions for the same client in which he is employed are still pending ; * and this is also the case as to special services rendered by him not connected with 1 Rothery v. Munnings, 1 B. & Ad. 15. on to its termination. I do not mean to 2 BoAKDMAN, J., in Mygatt v. Wilcox, say that under no circumstances can ho 1 Lans. (N. Y.) 58 ; Phelps v. Patterson, put an end to this contract; but it cannot 25 Ark. 185. be put an end to without notice." This ' Harris o. Osborn, 2 C. & M. 629 ; rule was recognized in NichoUs v. Wilson, Whitehead v. Lord, 7 Exch. 691; Martin- 11 M. & W. 106, and still later in Phillips dale V. Faulkner, 2 C. B. 706. In Harris v. Broadley, 9 Q. B. 745, although in the V. Osborn, 2 C. & M. 629, Lyndhurst, latter case it was held to apply only to 0. B., in passing upon this question, said: services and charges in the particular suit, "I consider that when an attorney is re- and not to affect general charges, tained to prosecute or defend a cause, he * Adams v. Fort Plain Bank, 36 N. Y. enters into a special contract to carry it 255. § 122.] WHEN STATUTE BEGINS TO RUN. 335 any suit, as for advice, drawing deeds, contracts, &c., — in sucli cases the light of action accrues at once, unless a special term of credit is agreed upon, and the statute begins to run from the time when they were rendered.* There are instances of special contracts with attor- nej-s, where their fee is made contingent upon the collection of a demand ; and in such cases, of course, the statute does not attach upon the entry of judgment, but only when the judgment is collected.^ In such case his fee, being exigible until the money is collected, does not begin to run from the date of the judgment,' but from the time when the money is collected; and, if the money is collected at different periods, perhaps the statute attaches to each sum collected, at the time of its collection. In Pennsylvania, it is held that the statute begins to run for professional services as soon as they are ended.* The theory upon which these cases proceed is that the services aie rendered upon an entire contract, so that a right of action does not accrue until the entry of final judgment ; ' and if a special contract is shown to have existed as to compensation, and the time and mode thereof, of course that will control as to the time when the statute attaches. Sec. 122. When Attorney is charged with Misfeasance or Mal- feasance. — An action lies against an attorney for negligence in the collection of claims left with him for that purpose, from the time the client first had or ought to have had, by the exercise of proper diligence, knowledge of the fact ; ° and he is treated as having notice of the fact after the lapse of a reasonable time, as it is the duty of a client, and the law presumes that he will do so, to look after his own interests ; ' and the lapse of a reasonable time, without bringing suit therefor, fixes his liability, and the statute begins to run from that time.' Of course, the 1 Id. In Hale v. Aid, 48 Penn St. matter were within six years ; and it was 22, it was held that the statute runs contended that the whole must be taken against a claim for professional services as to be done under one contract, and that soon as they are finished, and the relation there was no cause of action in respect to of continuing attorney in a litigated case any until all were complete. There was no will not prevent the claim for services evidence except the bill itself, and the Ian- generally from being barred by the statute, guage of that leads to a different con- although it may for services rendered struction ; therefore the items beyond the during the progress^of that particular case, six years should be disallowed." Phillips and in that case. In an English case, this v. Bradley, H Jur. 26-4. rule was well illustrated where an attorney ^ Foster v. Jack, 4 Watts (Penn.) 334. was employed to raise money on a mort- ' Morgan v. Brown, 12 La. An. 159. gage, and by direction of his employer ap- * Hale v. Ard, 48 Penn. St. 22; Lichty plied to several persons for that purpose, v. Hugus, 55 id. 434. and communicated fi'om time to time with ^ Hall v. Wood, 9 Gray (Mass.), 60 ; the defendant. In a suit for services the Eliot v. Lawton, 7 Allen (Mass.), 274. statate of limitations was pleaded. Lord ^ Derricksou v. Cady, 7 Penn. St. 27. Desman, C. J., said; "As to the first In White ij. Eeagan, 82 Ark. 281, it is said point, it appeared by the plaintiflf' s bill to begin to run at once, that certain items relating to a transfer of ' Rhines v. Evans, 66 Penn. St. 192; a moitgage occurred more than six years Stephens v. Downey, 53 id. 424. ago, and other items relating to the same ' Mardis v. Shackleford, 4 Ala. 493, 336 STATUTES OF IjIMITATION. [CHAP. X. question as to what is a reasonable time, in this as well as in all other cases, is one of fact, to be determined in view of the circumstances of each case. This rule does not override the rule that must at all times be borne in mind in reference to torts, — that time runs, and a right of action accrues from the wrong-doing, and not from the time of damage ; ' because the attorney is entitled to a reasonable time in which to bring action, and a right of action does not accrue against him, nor is thi' wrong complete until the lapse of such period. Then the tort becomes complete. TVhere an attornej- is sued for malpractice, the cause of action arises from the time when such malpractice occurred, and that without any reference to the circumstance whether the client then knew the fact or not.'^ Thus, where an attorney retained bj- the plaintiff in 1844 represented to him that certain proposed securities for an ad- vance of £3,000 were sufficient, when in fact they were worthless, but the fact of their worthlessness was not discovered until some time in 1860, after more than six j-ears had elapsed from the making of the security, it was held that the statute of limitations barred the claim, although interest upon the advance had in th6 mean time been duly paid. Batlet, J., in delivering the judgment of the court, said: ' ' This is a case of no difficulty whatever. It appears to me that the misconduct of the defendant is the gist of the action. If the allegation of special damage had been wholly omitted, the plaintiff would have been entitled to nominal damages.'' The doctrine of this case was sustained by a later one involving a similar question.' As to the question when a right of action accrues against an attorney for money collected by him for, and not paid over to, his client, some difficulty is experienced in view of the fact that an action cannot be brought until a demand is made upon him for the money. In Penn- sylvania, it is held that, in the absence of fraud on the attorney's part in concealing the facts, the statute begins to run from the time of the receipt of the money without regard to the question whether* the client had notice of the fact or not ; * and such also appears to be the rule in New York,^ Virginia,' and South Carolina ;' and this rule was held in some of the cases cited, although a demand for the money was made within six years, the court holding that the rule as to de- mand was for the benefit of the attorney, and did not affect the ques- 1 Batty V. Faulkner, 3 B. & Aid. 2S8. * Campbell v, Boggs, 48 Penn. St. i;24; 2 Whitehead v. Howard, 3 B. & Aid. Glenn v. Cuttle, 2 Grant's Cas. (Penn.) 288. In Crawford v. Goulden, 83 Ga. 173, 273 i Krause v. Dorranoe, 10 Penn. St. the court hold that, in an action against 462, an agent for negligence or unskilfulness, ' Stafford v. Richardson, 15 Wend, the statute begins to run from the time the (N. Y. ) 302. negligent or unskilful act was committed, ' Einne v. McClure, 1 Eand. (Va.) and that the circumstance that the plain- 284. tiff was ignorant of the fact cannot operate ' Hounsell v. Gibhs, 1 Bailey (S. C), as a suspension of the statute. 48, 2 Smith V. Fox, 6 Hare, .385. § 122.] WHEN STATUTE BEGINS TO KUN. 337 tion as to the actual accrual of the action. But in all these cases it wiU be observed that a long period of time had elapsed between the receipt of the monej' by the attorney and the bringing of the action for its recovery, and that the client had been guilty of laches in not making inquiry as to the state of the claim, and the attorney had been derelict in duty in not having apprised him of the fact that the money had been collected. Where the attorney notifies the client of the collection of the money, it has been held that the statute does not begin to run in his favor until after the lapse of a reasonable time from the receipt of such notice hy the client in which to make demand ; ^ but there does not seem to be any good reason for this rule, and we apprehend that, if the rule first stated is subject to any modification, it is much better expressed in a Pennsylvania case,^ where it was held that the statute under such circumstances begins to run from the time when the client has notice of the fact.' In Arkansas, it has been held that the statute begins to run, where no notice is given by the attorney of the collection, from the time when he ought to have given such notice ; * in other words, after the lapse of a reasonable time after the collection is made. In this case the court say that " where an attorney collects money on an account, and notifies his client thereof within a reasonable time, he will not be liable to an action for the money without special demand," but that the rule is otherwise where no notice is given.' If an attorney has fraudulently concealed the fact, as if, upon being inquired of by his client, he informs him that the money has not been collected, the statute does not begin to run until the discovery of the fraud ; ^ but the fact that he neglects to notify the client of the collection, or that he appro- priates the money to his own use, does not of itself amount to such fraudulent concealment.' Where an attorney collects a claim in instal- 1 lyle V. Murray, 4 Sandf. (N. Y. Su- omits to do so, the statute of limitations perior Ct.) 590. begins to run. If the attorney omits to 2 McDowell V. Potter, 8 Penn. St. 189. notify bis client, the latter may maintain * Such, also, is the rule stated in a suit without previous demand. The stat- McCoon V. Galbraith, 29 id. 293, as to ute will not commence to run until the partial collections upon a claim. client has notice loy some means, unless * Denton «. Emhury, 10 Ark. 228. In the attorney can show that the client could, a later case in the same State this doc- by ordinary diligence, have known of the trine has been reiterated and reaffirmed, collection." Jett v. Hempstead, 25 Ark. In that case the court held that an action 462. cannot be maintained against an attorney ' InHickokr. Hickok, 13 Barb. (N. Y.) or an agent for money collected by him as 632, it was held that the statute begins to such until after demand and refusal to pay run in favor of an attorney or other person it over. "It is the duty," say the court, who collects money for another, and neglects "of an agent or attorney, who has collected to pay it over, after the lapse of a reason- money as such, to give notice of the fact to able time to do so, without a previous de- his client or principal, within a reasonable mand. time. Upon receiving such notice, the * Glenn v. Cuttle, ante. client or principal is bound to make de- ' Fleming v. Culbert, 46 Penn. St. mand within a reasonable time ; and if he 498. VOL. I.— 22 338 STATUTES OF LIMITATrON. [CHAP. X ments, the statute does not begin to run until the entire claim is col- lected, or until the matter is terminated by complete success or failure, unless he notifies the client of such collections, in which case the statute begins to run from the time of notice.^ If an attorney fraudulently conceals the fact that a demand has been collected bj' him, the statute does not begin to run against his client until the discovery of the fraud b3- him ; ^ and if he sends the claim to another State for collection, and upon being inquired of bj- his client informs him that it is not collectible, when in fact it has been collected, the statute does not run against his client until the discover^' of the fraud, even though the answer was given by him in good faith.° In a New York case,^ E. , the plaintiffs decedent, was the owner at the time of her death, which occurred in 1878, of a promissorj- note exe- cuted by H., her husband, the defendant's intestate, which bj' its terms, fell due in May, 1873. E. left a will by which she bequeathed the note to certain persons named. H. proposed to the legatees that in case payment was not required, he would upon his death will all his property to them. The note was thereupon surrendered to him ; he died intes- tate in 1883. The will of E. was thereafter probated and letters of administration, with the will annexed, issued to the plaintiff. On refer- ence under the statute of a claim based upon the note, it was held, that if there was a valid agreement between H. and those to whom the note was bequeathed, then his estate was not liable upon the note, but only for a breach of the contract agreement, which cause of action belonged to the legatees, not to the plaintiff; if the agreement was invalid, then H. remained liable on the note simply, and the statute of limitations was a bar ; that the defendant was not estopped bj' the agreement from setting up the bar of the statute, as the plaintiff represented none of the parties and was an entire stranger thereto. 1 McCoon V. Galbraith, 29 Penn. St. » Morgan v. Zener, 83 Penn. St. 805. 293. 4 Myers v. Cronk, 113 N. Y. 608. 2 Wickersham v. Lee, 83 Penn. St. 416. § 123.] 339 CHAPTER XI. Agents, Factors, &c. Sec. 123. Agents, Factors, &o. Sec. 123. Agents, Factors, &o. — Where goods are consigned to an agent for sale, on commission or otherwise, in the absence of any special contract relative thereto the law implies a contract on his part to account for such goods as are sold, paj'^ over the proceeds to his principal, and return such as are unsold, on demand ; and an action will not lie against him, as a general rule, and the statute does not conse- quently begin to run against the principal, until an account has been rendered or a demand has been made.^ In a Pennsylvania case,^ the plaintiffs furnished to the defendant, in 1856, an invoice of medicines to be sold on commission, and accoflnted for at prices fixed bj' a schedule. The defendant never rendered any account nor returned the goods, and in 1865 the plaintiff brought an action therefor, and the defendant set up the statute to defeat the claim. The court held that the statute did not apply, as it did not begin to run until an account had been ren- dered or a demand made upon the defendant by the plaintiff. The prin- ciple upon which these cases rest is, that, inasmuch as no time is agreed upon within which an account is to be rendered, or paj'ment to be > Clark v. Moody, 17 Mass. 144; Top- ham V. Braddick, 1 Taunt. 672 ; Collins V. Benning, 12 Mod. 444 ; Baird v. "Walker, 12 Barb. (IST. Y.) 298 ; Holden v. Crafts, 4 E. D. Sm. (N. Y. C. P.) 490; Sawyer i>. Lappan, 14 N. H. 352; Hutch- ins V. Oilman, 9 id. 360; Taylor v. Bates, 6 Cow. (N. Y.) 379; Paschall v. Hall, 5 Jones (N. C), Eq. 108 ; Hays v. Stone, 7 Hill (N. Y.), 128; Krause v. Dorrance, 10 Penn. St. 462. Where money is de- posited with a person for a specific pur- pose as, to be invested in certain property or loaned upon interest, although no time is specified within which he shall account, he is only required to account on demand, and the statute does not begin to run against the principal until a demand has been made. Joseph v. Baker, 16 Cal. 173. A distinction of great importance exists between such an agent and one who is merely intrusted with the collection of money, which arises out of the contract necessarily implied by law. In the former case, the only contract which can be im- plied is, that he will invest or loan the money judiciously, and account to the prin- cipal therefor on demand ; while in the latter case the contract implied is, that he wiU collect the money and pay it over to his principal as collected. Hart's Appeal, 32 Conn. 520. And although in some in- stances, as in the case last cited, the rule may operate harshly, yet the fault is not with the law, but with the principal who leaves important interests to be controlled by an implied, instead of an express, con- tract. 2 Jayue v. Mickey, 55 Penn. St. 260. 340 STATUTES OF LIMITATION. [chap. XI. made, it will be presumed that such account was to be rendered and payment made upon demand b3- the principal, and that the agent stands to the principal in the relation of a trustee, rather than in tliat of a debtor, until by a demand upon him the principal has put an end to the trust. But this presumption does not arise where a special contract exists, providing the period or periods within which an account shall be rendered or paj'ments made is fixed upon, and in that case a right of action, the statute will begin to run from such periods. In the case of an open agency, it seems that a demand maj- be pre- sumed after the lapse of a reasonable time. But in all cases of an open, continuing agencj', a demand must either be proved or presumed. "^ The presumption is held in some of the States to arise so as to dispense with proof of a demand in the case of a collecting agent who fails to notify his principal, after the lapse of a reasonable time after the col- lection is made ; ^ while in others, and by far the larger number, it is held that the cause of action arises from the time when a demand is made upon the agent, and not from the time when the money is re- ceived by him.* In Connecticut, it is held that no demand is necessary amounts to such concealment of the state of the business, as in contemplation of law is such a fraud as deprives him of the protection of the statute." This case pro- ceeds upon the ground that the principal may lie by and depend upon the integrity of his agent, without the exercise of any vigilance in that respect upon his own part, and that the failure of the agent to discharge his duty is per se a fraud. But this position is hardly sustainable, and to that extent the doctrine, of the case has been overruled by Rhine v. Evans, 66 Penn. St. 192. See also Campbell^ i). Boggs, 48 id. 524. * Merle v. Andrews, 4 Tex. 200; Gard- ner 0. Peyton, 5 Cranch (U. S. C. C), 560; Buchanan v. Parker, 5 Ired. (N. C.) 507; Judah v. Dyott, 3 Blackf. (Ind.) 324; Lever v. Lever, I Hill (S. C.) Eq. 62; Taylor o. Spears, 8 Ark. 429 ; Hyman ■0. Gray, 4 Jones (N. C. ) L. 155; Topham V. Braddick, 1 Taunt. 571; Green v. John- son, 2 G. & J. (Md.) 389; Dodds v. Van- nay, 61 Ind. 89 ; Egerton v. Logan, 81 N". C. 172. In Green v. Willianis, 21 Kan. 64, it was held that, in the absence of any contract between the principal and his agent as to when or how the money collected by him is to be sent, the statute does not begin to run until after demand and refusal. 1 Heath, J. : Topham v. Braddick, 1 Taijnt. 672 ; Johnston v. Humphrey, 14 S. & R. (Penn.) 394; Judah v. Dyott, 3 Blackf. (Ind.) 324; Armstrongs. Smith, 2 id. 261 ; Holden v. Crafts, 4 E. D. Sm. (N. Y.) 496 ; Perris v. Parris, 10 Johns. (N. Y.) 285; Sawyer v. Tappan, 14 N. H. 352; Buchanan v. Parker, 5 Ired. (N. C.) L. 597 ; Staples v. Staples, 4 Me. 532 ; Buchan v. James, 1 Speers Eq. (S. C.) 375; Satteriee v. Eraser, 2 Sandf. (N. Y. Superior Ct.) 142; Walradt v. Maynard, 3 Barb. (N. Y.) 584; McNair v. Kennon, 3 Murph. (S. C.) 144; Lever v. Lever, 1 Hill (S. C.) Eq. 47 ; Taylor v. Spears, 8 Ark. 440. In Stamford v. Tuttle, 4 Vt. 82, and Collard v. Tuttle, id. 491, it was held that when a demand is necessary to perfect a right of action, and put the stat- ute of limitations in motion, a demand would be presumed from the lapse of time, and such dealings between the parties as render it improbable that it should be neglected. See also Eaymond v. Simon- son, 4 Blackf. (Ind. ) 77. 2 Drexel v. Eaimond, 23 Penn. St. 21. See also Jett v. Hempstead, 25 Ark. 462. The doctrine of this case is opposed to that of McDowell v. Potter, 8 id. 190, in which it was held that, "before an agent can be permitted to avail himself of the statute, he must prove that he has per- formed his duty. His omission to do so § 123.] AGENTS, FACTORS, ETC. 341 in the case of an ordinary collecting agent, and that the statute begins to run from the time when the money was received bj' the agent.'' In this case the court put its decision upon the ground that money col- lected bj' an agent is recoverable at law, and only at law, by the ordi- nary legal remedies. In other words, that, in the ordinary relation of a principal and a collecting agent, the agent becomes a debtor for the money as soon as it is received, and that maj"^ properly be charged in account against him, and recovered b}^ action of book account where that form of action exists, or in assumpsit at the election of the prin- cipal, and that the agent cannot properly be said to take or hold the money as a trustee under an express trust." The difference of 1 Hart's Appeal, 32 Conn. 520 ; Law- rence University v. Smith, 32 Wis. 587. In Eeitz v. Eeitz, 14 Hun (N. Y.), 536, the defendant in 1854 was intrusted by the mother of the plaintiff and defendant with certain money, and that with this he purchased certain real estate and took the title in his own name, and afterwards, with the consent of his mother, he erected buildings thereon and collected the rents. The mother died in 1866, leaving the plaintiff and defendant as" her only chil- dren. The court held that the statute had run against all claim for the money in the defendant's hands before his mother died. "An agency," said Barnard, P. J., "is not such a technical trust as to prevent the application of the statute of limita- tions." Eenwick v. Renwick, 1 Bradf. (N. Y. Surr.) 234 ; Murray v. Coster, 20 Johns. (X. Y.) 576; Lillie v. Hoyt, 5 HUl (N. Y.), 396. 2 In this case the circumstances were such as to induce the court to bend the rules as far as possible in favor of the plaintiff. The amount invblved was over $47,000, and the amount- which was lost in consequence of the statute bar was nearly f 37, 000, all of which was admitted to have been received by Mr. Bull, the agent, in his lifetime, in money, as the proceeds of the renting and sale of the plaintiff's real estate in Ohio, and there was no pretence or claim that it had ever been paid over to her. He was appointed her agent on the 30th of May, 1839, with a power of attorney authorizing him to take charge of all the property, sell or rent the same, renew contracts, receive the money for the rent or sales of the same, &c. In 1843, by the death of her mother, the plaintiff became the owner of a large lot of other real estate in Ohio, and in 1851 she executed another power of attor- ney to the deceased, authorizing him to take charge of this property to the same extent that she could do herself. The propeity had for a long time prior to the appointment of the deceased as agent in 1839 been in the charge of agents in Ohio, and their agency was continued during the- lifetime of Mr. Bull, so that all he had to do in the matter was to take general con- trol of the matters, execute the convej'-- ances, and receive the money forwarded by them to him. In 1841 he rendered an account to the plaintiff, and paid over to her all the money received by him up to- that time. From the time of the settle- ment in 1841 down to the day of Mr. Bull's death in 1861, he received of the plaintiff's money §137,328.79, and paid out for her during that period $99,784.16,. leaving a balance due her of §37,535.15. The statute of limitations was set up- against all of this claim except that which had accrued in the last six years preceding- Mr. Bull's death, and the plea was sus- tained, and the plaintiff's recovery limited' to §11,976.47. "The question in this- case," said Hosmek, J., "is, whether the statute of limitations applies to so much of the appellant's claim against the estate of Mr. Bull as was of more than six years' standing at the time of his death. Coun- sel for the appellant insLst that it does not apply, and they cite in support of their claim that class of English and American cases in which it is held that the statute does not run in favor of trustees, stewards, and certain confidential agents, so long as the confidential relation exists. They also 342 STATUTES OF LIMITATION. [chap. XI. opinion, whether a right of action exists against an agent until a demand has been made upon him, has arisen upon the question as cite cases against persons having money in their hands under such circumstances that they are not hound to pay it over to the owners of it untU after it has been de- manded, in which case, as the money can- not be said to he legally due until after such demand, the statute, of course, does not begin to run until that time. We have not deemed it necessary to examine these cases particularly, as we are of opin- ion that they do not apply to the facts of this case. We prefer this course, because we are not at this time prepared to say ■that the rule against stewards and certain confidential agents as administered in Eng- land applies here to the full extent claimed by the appellant ; and as we think none of the cases go so far as counsel ask us to go in this case, it appears to us the most proper course to leave the law upon this subject to be considered when the question arises under such circumstances as render it necessary to determine it. " If the question in this case had arisen previous to the statute of 1855 (p. 69 of the acts of that year), giving to courts of equity 'concurrent jurisdiction with courts of law of all matters remediable by action of .account, to be proceeded with in such courts of equity to final decree, ac- cording to the common course of proceed- ings in courts of equity,' it is veiy clear that the statute of limitations would have been a direct and positive bar to the prose- cution of the claim. It is only by virtue of that statute that the appellant claims that a bill in equity is a concurrent rem- edy with an action of account, and might now be brought for her demand ; and al- though an action of account as well as book debt and assumpsit is barred by the statute, yet the appellant insists that a bill in equity is not, and as she is now at liberty to prosecute her demand on the equity side of the court, she has a right to the decree of the court in her favor, al- though the claim is barred at law. The action of account, hook debt, or assumpsit, or whichever of them would have lain for this demand, were and now are perfectly adequate remedies for the claim, and, ex- cept so far as the act of 1855 has altered the law in respect to matters remediable by the action of account, where there is adequate remedy at law courts of equity have no jurisdiction. We have the case, then, in which previous to 1855 an action at law was the only remedy for the en- forcement of the claim, and in which such an action may still be maintained, since by that act a bill in equity is only made a concurrent remedy with an action of ac- count. Now, as we have seen, if an action at law had been brought, or the demand had rested as a mere demand at law to be prosecuted before cammissioners on an in- solvent estate, it is not and cannot be denied that the statute of limitations would apply to the claim, since the stat- ute is made directly applicable to the ac- tions of account, book debt, and assumpsit founded on such a claim as this, which are the only actions that could have been brought for it. Eev. Stat. tit. 31, § 3. But if such a claim was absolutely barred by the statute of limitations as it existed previous to 1855, and is still barred by the express language of the statute if an at- tempt should be made to enforce it by an action at law, can it he regarded as the intention of the act of 1855 to repeal the limitation in case a party under the author- ity of that act chose to prosecute his claim on the equity side of the court, while it confessedly would be barred if prosecuted at law ? In Eobbins v. Harvey, 5 Conn. 335, it was held that where assumpsit was brought for a claim which was the ordi- nary subject of book debt, the statute of limitations in regard to book debts apphed to the case, on the ground that the statute was intended to apply not merely to the form of the action, but to the nature of the indebtedness ; and it would seem but a fair application of that principle to hold that the statute creating a bar to an action of account is equally applicable to the account which is attempted to be enforced by a bill in equity, which is now made by statute a concurrent remedy with an ac- tion of account. Especially would this seem to be so in Connecticut, where we have been in the habit of treating the stat- utes of limitation with rather more favor § 123.] AGENTS, FACTORS, ETC. 343 to what contract is to be implied on the agent's part, when he as- sumes the relation to his principal. Formerly, it was thought that than has been the case elsewhere. Our statute in terms merely applies to an ac- tion brought for the recovery of a claim or debt of more than six years' standing, but this word 'action' has never been con- strued in any nairow and technical sense as applying only to a demand made by a plaintiff, but has been extended to a plea of set-off, on the ground that the spu'it of the act embraces an outlawed claim which a party attempts to avail himself of by a set-off, as much as the .same claim when the party attempts to enforce it by a direct' suit; and it is only on the ground of its being within the object and spirit rather than within the letter of the statute that claims presented to commissioners on in- solvent estates are held to be subject to the statute of limitations. 1 Swift's Dig. 307. " We have never adopted the expedient which has prevailed to some extent in other States, of taking cases out of the statute upon some doubtful or equivocal acknowledgment, but have always held that the party must have intended to re- linquish its protection, or that its pro- visions must be applied ; and our courts have called it a beneiicial statute, and have looked upon the lapse of time pre- scribed as a bar to the bringing of an action as furnishing a presumption of pay- ment rather than as an arbitrary statu- tory bar to a valid claim. Judge Hosmer quotes with approbation the language of Chief Justice Paesons, in which he lays down the principle that the presumption from the lapse of time is that the defend- ant has lost the evidence which would have availed him in his defence if season- ably called on for payment ; and Judge Daggett expresses his satisfaction in re- jecting the grounds on which an attempt was made to evade it. Lord v. Shaler, 3 Conn. 131; Marshall v. Dolliber,-5 id. 480; Weed V. Bishop,.? id. 128; Peck v. Bots- ford, id. 172. " But coming to the appellant's claim.in this case, is it one to which the statute properly applies? Now, we do not under- stand that the counsel for the appellant deny that the items of the account are all the proper subjects of charge on book, and might be recovered in an action of book debt. Indeed, we do not see how, consist- ently with their own claim upon the rec- ord, this could be denied. But it is said that th& claim is pursued only as an equi- table one, in the nature of a bill in equity for an account against a confidential agent ; and that to such a claim the statute does not apply. The deceased is said to have been a trustee for the appellant, and his case is likened to that of the steward of an estate. But, in regard to the money un- accounted for, wherein was he a trustee or steward any more than any collecting agent who has the money of his principal in his hands may be said to be such ? And it surely would not be claimed that the statute of limitations does not apply in favor of an ordinary agent who has his principal's money, and whose only duty in regard to it is to pay it over. The audit- or's report shows that all the money re- ceived by Mr. Bull, which he has not accounted for and paid over to the appel- lant, consists of sums that were remitted to him by Miss Hart's agents in Ohio. And the only duty that devolved on him in regard to this money was to get the drafts cashed and pay over the avails to his principal. Can there be any doubt, supposing this to be all there is in the case, that on the receipt of any sum from one of the appellant's Ohio agents by the agent here, that sum immediately became a debt against the agent here, for which book debt or assumpsit might have been brought? Is not the duty of a collecting agent to seek his principal and pay over the money collected as obvious and clear as any duty he has to perform ? An ac- tion will lie against a sheriff who collects money on execution without any previous demand. And in respect to the moneys collected of the Ohio agents, it would seem that Mr. Bull could stand upon no higher ground. Dale v. Birch, 3 Camp. 347 ; Jefferies o. Sheppard, 3 B. & Aid. 696. But if an action could have been brought for this money without a previous demand, then, as the rule must be reciprocal, the statute commenced running at the time 344 STATUTES OP LIMITATION'. [chap. XI. account was the only remedj- against an agent, and later, that assumpsit could not be maintained unless there had been an express promise to account. "But,"' saj's Parker, C. J., in a well-considered Massa- chusetts case,^ "the doctrine now settled is, that the undertaking to act as bailiff is an undertaking to account; and Lord Holt saj-s,'' whenever one acts as bailiff, he promises to render an account ; ' al- though,' he adds, ' in Comj-n on Contracts the inference from this the money was received. Lillie v. Hoyt, 6 Hill (K. Y.), 395. It was suggested that there were taxes and other expenses to he paid out of these funds. This, how- ever, does not appear, and the fact that the money was remitted to Mr. Bull by other agents of Miss Hart residing in Ohio, where the lands were situated, raises a strong presumption that only the net avails, after aR charges of this sort had heen deducted, were sent to him, so that his only duty must have been to pay over the sums as they were received. We do not see, therefore, how Mr. Bull's condition was anything other than that of an ordi- nary collecting agent; and if we are correct in this, there can be no doubt that the statute of limitations applies to the case. " But we do not see how it was possible for the appellant to recover in this case before the auditor that portion of her claim which is of more than six years' standing, on another ground, whatever might have been the case before the com- missioners. No doubt, on a trial before commissioners on an insolvent estate, it is open to a party to make out either an equitable or legal claim, and on his doing either he is entitled to an allowance of it, since in that tribunal there are no plead- ings to embarrass a claimant, and the com- missioners must have equitable as well as legal powers, or they could not do justice in all cases. But when a case comes by appeal from the commissioners to the su- perior court, although there are of course the same eqiiitahle and legal powers in the court, yet by the rules of practice which prevail in that court the claimant, where he is the appellant, must give the opposite party specific notice of his claim by filing what are called the reasons for his appeal. In this case the appellant might have stated her claim in such a manner as to entitle her to a recovery whether it was an equitable or strictly legal one. But she obviously should be confined in her proof to the reasons she chose to give, since otherwise the rule requiring her to give reasons, instead of being of any benefit whatever to the appellees, would operate as a snare to mislead and entrap them. But the reasons in this case expressly state that the account presented to the commis- sioners, the disallowance of which is com- plained of, was due to the appellant by book; and she makes profert of her hook in the precise form that has, time out of mind, been used in ordinary declarations in an action of book debt, and does not state her claim in any other form or as arising in any other way. How, then, could the auditor treat the claim in any other way than as a claim at law like any other book debt ? And as the statute of limitations is made directly applicable to the action of book debt, and is held to apply to a debt by book in whatever form presented, it appears to us that there is no way of avoiding the application of the statute without wholly departing from the claim which the appellant has made upon the record. There was an attempt to avoid this result by claiming that the language of the second reason for the appeal was general enough to justify proof of any just claim, whether legal or equitable; hut this, we think, is not so. Indeed, there is really but one reason given for the appeal. What is called the second reason sets up no new or different claim from the first. It ex- pressly refers to the claim made in the first reason, and is a mere allegation that the commissioners rejected it when they should have allowed it. "We are of opinion, therefore, that so much of the appellant's claim as was of more than six years' standing at the time of the death of Mr. Bull cannot be re- covered against his estate." 1 Clark II. Moody, 17 Mass. 145. 2 In Wilkin v. Wilkin, 1 Salk. 9. § 123.] AGENTS, FACTORS, ETC. 345 case is made to be, that the factor is liable only on demand, or on refusal to pa}' money,' yet, if the general principle adopted by Holt is right, that the mere acting as bailiff is promising to account, it would not seem that a demand is in all cases necessary' to enable the principal to maintain his action. Indeed," he sa3's, " such a limitation of the liability of a factor would be exceedingly inconvenient, and tend to the embarrassment of trade ; for if a merchant who sends his goods to a foreign country to be sold can have no right to call for his money, the proceeds of his goods, until he has sent abroad to make a demand, the risk of loss from the failure of factors would be considerably increased, and the disposition to trust them proportibnably impaired. Generally the consignor of goods accompanies his consignment with directions how to apply the proceeds : either to pay them over to a third person ; or to remit in bills, or in merchandise, or in specie ; or to hold them to answer his future orders : and in these cases there can be no difficulty. For the factor cannot be liable until he has actually or impliedlj' broken his orders. I saj- impliedly, for if the banker should become bankrupt or insolvent, with the goods of the principal or their proceeds in his hands, so that he is disabled from remitting them, or otherwise appro- priating them according to the instructions of the principal, there seems to be no reason why an action would not immediately lie against him ; by analogy to the common-law principle, that when a duty is to arise upon a demand, and the party liable has disabled himself from per- forming, the necessity of a demand ceases. And if this were not so, creditors here, who could not for a long time cause a demand to be made, would have no opportunity of securing themselves out of the effects of the factor in this country ; while creditors of a different de- scription, but not more meritorious, would meet with no impediment in securing their debts. "The practice here has conformed to this principle ; for many instances are known to have occurred, of actions brought and sustained against factors in foreign countries, although no demand had been previously made upon them to render an account. And it is probably upon this ground, if at all, that a principal may prove his claim against his factor, under a commission of bankruptcy in England, although no demand had been made upon him ; so that the debt was contingent according to the general liability of factors.^ It is also the duty of factors to account to their principals in a reasonable time, without any demand, in cases where a demand would be impracticable or highly inconvenient, so that a factor abroad, who should receive goods to sell, without 1 In Green v. Williams, 21 Kan. 64, it to run in favor of the agent until a de- was held that in the absence of any agi-ee- mand has been made upon him for the ment between •■, principal and his agent money, or at all events until directions residing in another State, as to when or have been given him as to how it shall be how money collected by him shall be sent sent, to the principal, the statute doeS not begin 346 STATUTES OF LIMITATION. [CHAP. XI. special directions as to tlie mode of remittance, would be held, according to the course of business, to give his principal information of his prog- ress in the transaction ; and if he should neglect unreasonablj' to for- ward his account to his employer, this negligence would be a breach of his contract, and subject him to an action. So, if he should render an untrue account, even without any intention of fraud, claiming greater credit than he was entitled to, so that the balance shown was not true, we conceive the principal would have a right of action, without a de- mand. For he would not be obliged to submit to such charges as the factor should choose to make, or to wait, perhaps at the risk of his debt, until his agent should" voluntarily correct his account, and ac- knowledge a just balance. But if the factor should receive and sell the goods, without any special orders as to remittance, upon an under- standing, express or implied, that he is to hold the proceeds to the order of his principal; and he does nothing in violation of those orders, or to disable himself from compl3ing with them when they shall be received ; and transmits a true account of sales, in a reasonable time, according to the course of business, and is ready to remit or answer drafts upon him, — we think that no action will lie against him for the balance in his hands, for his contract is to sell and render an account, and he ought not to be held to remit at his own risk ; and he cannot remit at the risk of his principal, unless in compliance with instructions. It was urged in argument, that, as the defendants had stated an account and acknowledged a balance, they were indebted for that balance, and that a right of action immediately accrued without demand, as in other cases of admitted debt. It may be so, where there is nothing in the case to control the legal presumption. But if the course of business between the parties, or any evidence accompanying the account, shows a contrarj' implication, the presumption would fail. " In the case before us, the referees state that, when the account was sent on, which acknowledges the balance, it was accompanied bj' a letter from the defendants, in which they state that they hold the balance for the order of the plaintiff. This declaration is repeated in the following month ; and it appears by the account stated by the referees that all the proceeds, except the balance acknowledged, had been paid bj' drafts from the plaintiff. These facts, with nothing of a contrary complexion, go far to show that the consignments were accepted with an under- standing that the proceeds were not to be remitted without orders from the consignor. "The case in this>view seems to be at least as strong as that cited from 10 Johns., ^ iu which it was decided that the consignee was not liable in the action, because he had committed no breach of trust or duty. It appeared in that case to be the usage for the consignor to direct the mode of remittance ; and it probably is the general practice 1 Ferris v. Parris, 10 Johns. (S. Y.) 285. § 123.] AGENTS, FACTORS, ETC. 847 e-«erj-where. Such practice, together with the conduct of the defend- ants in the ease before us, may justify the conclusion that this con- signment was made and accepted conformably to this practice. But this is a fact to be stated by the referees, and not by the court. If thej^ determine, from the evidence in the case, that the understanding of the parties was, that the consignor was to direct the remittance, to draw for the proceeds, or otherwise appropriate them, then the defend- ants were not liable to the suit ; and of course not to the costs, unless they were negligent in transmitting their account, or upon another ground they rendered themselves Uable.'' " It has been stated, as one of the grounds of the liability of a factor, that he should have transmitted a false account, or one misrep- resenting the balance in his hands. In the account transmitted by the defendants, the balance stated is little more than half the amount found by the referees to be due. Prima facie, this shows a wrong statement of account, hj which the plaintiff was not bound to abide. If he had drawn for a larger sum, his bill might have been protested ; if he had drawn for the balance as stated, it might have been an admission that the balance was true. He had, therefore, a right to sue, if it should turn out that there was a misstatement of the account. On the other hand, if it shall appear that the account was correct, and that the referees have increased the balance against the defendants improperly, or from considerations of supposed equity, contrarj' to their legal rights, the eventual balance found would not affect their liabiUty when the suit was brought." From the cases cited in this and the previous section it may be said that the tendencj' of the courts is, to hold that, in the case of an ordi- narjf^ collecting agent, whose only duty is to receive and pay over the monej- to his principal, the statute begins to run immediately upon the receipt of the money, regardless of the question whether a demand has been made or not, unless he has fraudulently concealed the fact of its receipt by him,' or in any event after the lapse of a reasonable time > When there is an understanding be- ^ Campbell v. Boggs, 48 Penn. St. 524 tween the parties that the agent is to Emmons v. Hayward, 6 Cush. (Mass.) 501 account or pay on demand, the agreement East India Co. v. Paul, 1 Eng. L. & Eq. 44 takes the place of any implied contract, Estes v. Stokes, 2 Rich. (S. C.) 320; Hop and eontrola. Thus, where money is de- kins v. Hopkins, 4 Strobh. (S. C. ) Eq. 207 posited with an agent to be loaned or in- Cogwin v. Ball, 2 III. App. 70. In Dodd vested with interest and be accounted for v. Vannay, 61 Ind. 89, it was held that a on demand ; whether the loans be made creditor who takes a note from his debtor or not, or whether the money is used by to be collected and applied to the payment the agent or not, or although the money of his debt, and the balance to be paid to is used by him which would amount to the debtor, is the debtor's agent, and not a loan to him, the statute does not be- liable for the balance until demand has gin to run in his favor until after a de- been made therefor. The statute begins to mand for an accounting is made upon him. run against the claim of a principal to Baker v. Joseph, 16 Cal. 173. recover from an agent who has collected a 348 STATUTES OF LIMITATION. [chap. XI. after he has received it, in which to notify his principal.^ Where the agent has properlj- notified his principal of the collection,'' or where he has rendered him an account of his transactions, the statute runs from the receipt of such notice or account by the principal.' And in the case of factor's other agencies, involving a more complicated condition, the question as to whether a demand is essential to complete the liabilitj- of the agent will depend upon the nature and character of the business, and the contract that is fairly implied therefrom, in view of all the cir- cumstances.* There is apparently no good reason why a principal, in the case of ordinary agencies, should be protected against his own laches any more than anj' other creditor ; and such cases seem clearly to be within the verj' mischiefs that the statute designed to correct, and, ex- cept in those cases where the agent stands in the position of a trustee note for him, from the time when the note was collected. Lawrence University v. Smith, 32 Wis. 587. 1 In Mitchell v. McLemore, 9 Tex. 151, it appeared that in November, 1839, the defendant agent acknowledged the receipt from the plaintiff of a sum of money to be invested in paying government fees for Texas scrip, placed in his hands for loca- tion. This he failed to do, and in 1850 the plaintiff brought an action to recover back the money. The court held that it was the duty of the agent to perform what he had undertaken to do, within a reason- able time, and that when he violated his duty by allowing that time to pass without performing it, he rendered himself liable to an action, and from that time the stat- ute of limitations began to run, and that in this case it had begun to run and be- come a bar to the action before it was brought. See also, to the same effect, Denton v. Embury, 10 Ark. 228; Jett «. Hempstead, 25 id. 462. This rule was also adopted in Hickok v. Hickok, 13 Barb. (B". Y.) 632; McDonnell v. Bank of Mont- gomery, 20 Ala. 313. 2 Lyle V. Murray, 4 Sandf. (N. Y.) 590; McCoon V. Galbraith, 29 Penn. St. 293; Davies u. Crum, 4 Sandf. {'S. Y. ) 355. ' McCoon V. Galbraith, ante. * Clark 1}. Moody, mUe. This rule furnishes the key to the many apparently conflicting decisions upon the question as to when the statute attaches against the principal. Thus, where an agent is author- ized to collect money for Ijiis principal, and nothing is said as to when he shall pay it over, what contract does the law fairly raise from the relation ? In determining this question, the circumstances of the case and the situation of the parties, the nature of the transaction and the probable duration of the relation, are all to be looked to. If the parties are in the same town or city, or so situated as to be fre- quently together, the presumption would naturally be that the parties intended that when the money was collected the agent should pay it over to the principal, or at the least notify him of the fact of collec- tion, so as to give him an opportunity to call for it in person, or direct how it should be paid. If the parties are distant from each other, the presumption would very properly be that the agent was expected to notify the principal, and await his direc- tions as to the disposition to be made of the funds, because it could not hav» been contemplated that the agent should pay the money in person, or that the principal should call upon him, in person, for it. Therefore, in such a case the presumption would be that the parties intended that the agent should notify him when the money was collected, so as to give the principal an opportunity to direct how it should be disposed of; and in the latter case the statute would begin to run from the receipt of the notice, Lyle ii. Murray, ante ; Jett v. Hempstead, ante ; while in the former case it would run from the receipt of the money by the agent, Glenn V. Cuttle, ante; as the principal is charged with some diligence in looking after his own business. Hart's Appeal, 32 Conn. 520; Clark i>. Moody, ante. § 123.] AGENTS, FACTORS, ETC. 849 under an express trust, or has been guilty of actual fraud in concealing his liability to his principal, there is no good reason why the statute should not commence to run in his favor after the lapse of a reasonable period in which to give notice to his principal.^ If a person intrusts important interests to the care of another, leaving the whole matter resting in parol, there is no reason wh}^ a judicial exception should be made in his favor to take his interests out of the operation of the stat- ute, when, by the exercise of proper business discretion or of reasonable diligence on his part, his interests would have been properly protected ; nor, where the agent has unreasonably delayed notice to his principal of the fact of collection, can he claim the benefit of the rule that a demand shall be made before action brought.^ Where goods are left with a 1 Glenn v. Cattle, 2 Grant's Cas. (Penu. ) 273; Fleming B. Culbert, 46 Penn. St. 498. 2 Estes V. Stokes, 2 Eich. (S. C. ) 320. In the case of a general agency, where the business runs through a considerable period, the statute of limitations does not begin to run until the expiration of the agency, especially where there is a current account. But if the transactions are iso- lated, the statute attaches to each in the order of their event. Hopkins v. Hopkins, i Strobh, (S. G.) Eq. 207; Parris v. Cobb, 5 Eich. (S. C. ) 133. In a North Carolina case, one member of a firm was appointed agent for the others, to collect the debts due the firm and account for them as fast as received, or whenever required by the other partners. He entered upon the dis- charge of these duties in August, 1774. In April, 1777, he made a payment to the other partners of a part of their respective shares, who, being British subjects, were shortly after obliged to leave the State. In 1800, twenty-three years later, a bill for an accounting was brought against the representatives of the acting partner (then deceased), and it was held that the statute had not run upon the claim, because no demand for an accounting had been made. " The moneys, " said Tatloe, J., "werere- ceived by him in the character of a trustee, liable to pay what he should receive when his copartners should require it, and it was only when they did require, and he i-ealized it, that this fiduciary character was put an end to. " McNair v. Kennon, 3 Murph. (N. C. ) 139. In Sims v. Brut- ton, 3 Exch. 802, it appeared that in March, 1832, the defendants, B. and C, who were then in partnership as solicitors, were employed by A. to lay out £600 on mortgage. They lent the money to L. on the mortgage of certain premises, and re- tained possession of the mortgage deed. The premises were afterwards sold subject to the mortgage, and the purchaser paid C. the £500 and interest, but without the knowledge of B., and the deed was given up to the purchaser by C, but no receipt was indorsed thereon, nor was any recon- veyance or receipt executed or signed by A. , who was not informed that the money had been paid. In December, 1832, C, without the knowledge of B., returned to the purchaser £300, and received back the mortgage deed, and no part of the £500 was paid to A. Interest, at first on the £500, and then upon the £300, was paid to C. by the purchaser; and entries were made in the books of the defendants, giv- ing credit to A. for interest on the £500, and debiting him with interest paid to his agent. In July, 1838, the defendants dis- solved partnership. Up to the dissolution, interest on the £500 was regularly paid to the agent of A. by C, by checks drawn by the defendants on their bankers; and, after the dissolution, it was paid by C, some- times in cash and sometimes by checks on his own banker. In some of the receipts the money was described as interest upon a mortgage. A. died in May, 1840. In December, 1846, the purchaser paid to C. the £300 and interest, and received from him the mortgage deed. B. was ignorant of the receipts and payments subsequent to the investment of the £500, until 1849. In 1848, the plaintiffs, the executors of A., first discovered that the mortgage money had been repaid. It was held that, under 350 STATUTES OF LIMITATION. [chap. XI. person to be sold on commission, and when sold to be accounted for to the principal, in the absence of anj- express contract the law will from the facts imply one on his part to account to his principal on demand, and in such a case the statute would not run in his favor until a demand has been made,^ or until the lapse of such a period that the law will presume that a demand has been made." But, as previouslj* stated, it must not be forgotten that the weight of authority sustains the rule that a right of action does not accrue until after a demand.' Where a person claims to act as the agent of another, without an}' authority whatever, or where he is in fact an agent but acts in excess of either his real or apparent authority, a person who has dealt with him on the credit of his supposed principal may bring an action against the agent at au}' time within six years from the time when he has notice of the fact that the acts were unauthorized.* On the other hand, where an agent becomes personallj' liable for a debt which he had authority to create, and which the principal should pay, the statute does not com- the above circumstances, the statute of limitations was a bar to the action; also, that no action would lie against B. , inas- much as the subsequent receipt of the mortgage money by C. was wholly un- authorized, and not within the scope of the partnership business. 1 Holden v. Crafts, ante; Baird v. Walker, 12 Barb. (N. Y.) 298; Judah V. Dyatt, 3 Blackf. (Ind.) 324 ; Clark i^. Moody, ante. s Heath, J., in Topham v. Braddick, ante. 3 See note 1, p. 339. In Middleton v. Twombly, 125 N. Y. 520, it wag held that the rule that an action at law cannot be maintained by partners representing partnership trans- actions, does not apply to actions upon expi'ess or implied promises in relation to special transactions, or where a balance has been declared, or where the transaction does not involve an accounting as to part- nership transactions. "When, from the usual course of busi- ness, or pursuant to special contract and instructions, a foreign factor has been in the habit of remitting the proceeds of consignments received by him without demand from the consignor, it is his duty to remit the proceeds of future consign- ments without waiting for demand, and a cause of action against him accrues upon the receipt of such proceeds, and his fail- ure to remit. In this case in an action for money had and received, it appeared that the plaintiff, a merchant doing busi- ness and residing in China, consigned goods to F., the defendant's testator, a commission merchant in New York City, under an agreement that F. should sell said goods, and pay from the proceeds their cost, with all expenses of freight, insurance, &c., and share equally with the plaintiff the net profits and losses ; certain other goods were consigned to liim for sale on commission. Prior to January, 1865, P. had sold all the goods consigned, col- lected the proceeds, rendered statements, and remitted to the plaintiff his share of the proceeds. In his accounts F. cljarged the premiums paid by him for insurance on the goods. The insurance companies in which he had insured subsequently de- clared dividends in favor of their policy holders for business done prior to 1865, and paid over to F. the dividends on such insurance paid by him, the last payment being made in 1867, he never reported or paid over to plaintiff any part thereof ; plaintiff had no knowledge of these facts until 1888, when this action was brought. It was held that plaintiff's portion of said dividends became due and payable upon their receipt by F., and no demand was necessary to set the statute of limitations in motion, and therefore, that the action was barred by the statute. * Flack V. Haynie, 18 Tex. 408. § 123.] AGENTS, FACTORS, ETC. 351 mence to run against his claim for indemnity until he had paid the debt ; * and where he has sold property for his principal which proves worthless, whereby he is subjected to loss, the statute does not begin to run until he is subjected to such loss ; ^ that is, iintil he has been compelled to respond in damages in consequence of the defects in the goods sold. 1 Gilmore v. Bussey, 12 Me. 418. ' Legare v. Fraser, 3 Strobh. (S. C.) 377. 352 STATUTES OF LIMITATION. [chap. XU. CHAPTER XII. Bills, Notes, Checks, &c. Sec. 124. When payable ou Demand. 125. Notes or Bills payable " after Demand," "after Siglit," &o. 126. Notes and Bills payable by In- stalments. 127. Coupons, Interest Warrants, &c. 128. Notes payable in Specific Ar- ticles. 129. Notes subject to Assessment. 130. Bill of Exchange payable at Particular Place. 131. Bills accepted after Maturity. Sec. 132. Bills and Notes subject to Grace, 133. Notes payable upon the happen- ing of a Contingency. 134. Indoi-ser of Notes or Bills. 135. Acceptor of Bill. 136. Drawer of Bill. 137. Suspension of Stntute by Agree- ment of the Parties. 138. Goods sold on Credit to be paid in Note within Certain Time. 139. Witnessed Notes. 140. Checks. • Sec. 124. When payable on Demand. — As has alread}' been stated, the statute of limitations begins to run upon a bill or note paj-able at a fixed date, upon its maturity-, which is the day succeeding that upon which it becomes due, as the paj-or has the whole of the da_y upon which it becomes due in which to paj- it.^ Notes paj-able " on de- mand " become due and paj-able from their date, in the absence of any 1 Ferris ti. Williams, 1 Cranch (U. S. C. C), 475; Sliort v. McCarthy, 3 B. & Aid. 631 ; Wittersheim v. Carlisle, 1 H. Bl. 631. And this is so, even though the action would then be fruitless. Emery ». Day, 1 0. M. & E. 245. In Raefle v. Moore, 68 Ga. 94, it was held that a note payable one day after date became due on the next day, but could not be sued until the next day, even though the note was antedated, and that a suit brought on the day it became due would be premature. A note payable one day after date, dated Dec. 14, 1850, was sued Dec. 16, 1854, and it was held barred by the statute. Smith v. Wilson, 15 Tex. 132. But on such a note an action commenced Dec. 14, 1854, would have been in season. Cornell v. Moulton, 3 Den. (N. Y.) 12. On such a note the statute begins to run on the succeeding day. Davis v. Eppinger, 18 Cal. 378. Engel V. Fischer, 102 N. Y. 400. The defendant, at Vienna, Austria, where he resided, accepted a bill of ex- change, dated May 1, 1873, payable three months from date. Soon after he ab- sconded, coming to New York in July of that year, where he concealed himself from his creditors. The plaiutiflf discov- ered him in 1882, demanded payment of his bill, and, upon his refusal, brought suit upon the acceptance. It was held that the action was barred by the statute of limitations ; that the case was not within any of the statutory exceptions. The plain language of the statute may not be perverted to remedy the hardship or injustice of any particular case. Sleght V. Kane, 1 Johns. Cas. (N. Y. ) 76 ; Poillon d. Lawrence, 77 N. Y. 207, and the oases determining, where the debtor has been absent from the State, as to what is a return or coming into the State, so as to set the statute running, distinguished. § 124.] BILLS, NOTES, CHECKS, ETC. 353 statute to the contrary, and consequentl}' the statute begins to run thereon from their date,* if delivered on that daj- ; but if it is not deliv- ered on the day of its date, the statute begins to run from the date of its delivery, and not from its date, because until delivered it does not become operative, and no right of action exists until that time.^ And the same is also true as to notes pa3-able "at sight,"* "when de- manded," or " when called for," * or " in such instalments or at such times as C. may require," ^ or " when wanted," * or indeed any note in 1 WOks V. Robinson, 3 Eich. (S. C.) 182 ; Easton v. M'Allister, 1 Mo. 662 ; Taylor v. Witman, 3 Grant's Cas. (Penn.) 138 ; Larason v. Lambert, 12 N. J. L. 247 ; Hill V. Henry, 17 Ohio, 9 ; Hirst v. Brooks, 50 Barb. (N. Y. ) 354 ; Newman u. Kettell, 13 Pick. (Mass.) 418 ; Wen- man V. Mohawk Ins. Co., 13 Wend. (N. Y. ) 267 ; Fells Point Savings Institution v. "VVeedon, 18 Md. 320 ; White's Bank v. Ward, 35 Barb. (N. Y.) 637. MiUs v. Davis,113 X. Y. 243. And the fact that the statute provides that any negotiable note, which remains unpaid four months, shall be overdue, does not change the rule, and the statute begins to run from the date of the note. Trustees, &c. v. Smith, 52 Conn. 434. In McMuUen o. Eafferty, 89 Is'. Y. 456, one H. executed and delivered to plaintiff a non-negotiable note, made pay- able on demand, upon the back of which defendant had written his name. In an action thereon, it was held that the de- fendant did not, in a commercial sense, be- come an indorser, but could be treated by the plaintiff either as maker or guarantor ; and in either capacity the cause of action accrued against him immediately upon the execution of the note and without demand; that the statute of limitatious then began to run in his favor, and as the action was commenced more than six years after date of note, it was barred by said statute. It was also held, that payments of interest by H., although with the knowledge of the defendant, did not prevent the running of the statute ; to have that effect they must have been made by him, or for him, by his authorized agent. In Thrall v. Mead, 40 Vt. 540, in an action on a note payable on demand, it was held that six years was a reasonable time in which to make de- mand, and that the statute runs from that time. Upon the general proposition stated in the text see CaldweU e. Bodman, 6 VOL. 1. — 23 Jones (N. C.) L. 139; Presbrey v. Williams, 15 Mass. 193 ; Eastou v. Long, 1 Mo. 662 ; Little V. Blunt, 9 Pick. (Mass.) 488 ; Codman v. Eogers, 10 id. 112. The words " on demand," " at sight," &c., are held not to constitute a condition precedent, but rather to import that the debt is due immediately. Byles on Bills, 342. And unless accompanied by some writing re- straining or postponing the right of action, the statute begins to run thereon from, its date. Christie v. Fosdick, Sel. X. P. 351 ; Megginson v. Harper, 2 C. & M. 322 ;. Garden v. Bruce, L. E. 3 Exch. 300. In Lee V. Caasin, 2 Cranch (U. S. C. C), 112, a note payable on demand was held not payable until demand made ; but this" case stands alone, although the doctrine is warranted by a fair construction of the con- trart, and not by authority. Euff i: Bull, 7 H. & J. (Md.) 14 ; Peaalee v. Bretd, 10 N. H. 489. The same rule prevails in Scotland. Stephenson v. Stephenson, 11 F. C. Sc. 639; De Lavalette v. Wendt, 75' N.Y. 579 ; Wheeler v. Warner, 47 id. 519. 2 Craft V. Thomas, 123 Ind. 513 ;. O'Xeil V. Maghee, 81 Cal. 631 ; Jones v. Kicoll, 82 Cal. 83. * Copp V. Lancaster, Cro. Eliz. 548 ;■ Mcintosh V. Haydon, Ey. & it. 363;: Eumball v. Bull, 10 Mod. 38 ; Collins v. Banning, 12 id. 444. * Bowman v. McChesney, 22 Gratt.. (Ya.) 609 ; Kingsbury p. Butler, 4Tt. 458- 6 White t. Smith, 77 III 351. But see Creighton v. Sossean, 1 Iowa, 133, where a note made payable " at any time within two years " was held not to become payable until two years from its date, un- less the holder exercised his option to make it become payable at an earlier date by de- manding payment, in which case it became due, and the statute began to run from the date of demand. e Doriance v. Monison, MS. 354 STATUTES OF LIMITATION. [CHAP. XII. vrliich uo time for payment is expressed.^ Thus, in an Iowa case," & bill of exchange, in which no time for payment was fixed, was held to be payable on demand, and therefore not entitled to grace under the statutes of that State. But a note maj' be so drawn as to be payable at the option of the payee, either at once or on the happening of a contingencj'. Thus, in a Tennessee case,' an action was brought upon a note dated Jan. 1, 1865, payable in gold or silver. The note con- tained a statement, as follows : " This promise to pay is on condition that the banks of Tennessee have resumed specie payment at that time; if not, as soon thereafter as they do resume specie payment; and the court held that the payee could waive payment in gold or silver and recover currency, without waiting for the banks to resume, and that the question as to when the statute of limitations began to run on the note would depend upon the circumstance whether the holder of the note had waived payment in specie. The fact that a note is paj'able " on demand with interest after four months " does not change the rule, or raise a presumption that it was only to become paj'able after a de- mand in fact.* A note or bill indorsed or accepted after it is due, is, as against the acceptor or indorser, a note or bill payaljle on demand. ° A bill of exchange is subject to the same rules in this respect as a note, and a bill payable "on presentation," or "on demand at sight," is treated as though payable " at sight," ^ and therefore the statute runs upon it from its date. In case property is sold, or money loaned, to be retained without in- terest until called for or demanded, and no note is given therefor, the statute does not begin to run until demand is made, as the rules of com- mercial law are not applicable in such cases : ' and the implied contract raised, and which controls, is, that the debt is not due or payable until ■demand or something equivalent thereto is made. Where a note is given payable on demand, but at the same time an agreemen|; is executed which is to be taken in connection with it, and by the terms District Court, Philadelphia, June 17, in the absence of any proof upon that point. il848. In Young v. Weston, 89 Me. 492, a note 1 Aldaus «. Corn-wall, L. E. 3 Q. B. given, payable "at any time within six 578 ; Holmes v. West, 17 Cal. 628 ; Whit- years from this date," was held to be a lock «. Underwood, 2 B. & C. 157. In note payable on demand, and that the stat- Tucker v. Tucker, 119 Mass. 79, the note ute attached to it from its date, in suit was lost. It was alleged that on ' Davenport Bank v. Price, 62 Iowa, July 1, 1869, the defendant gave the plain- 570. tiUhisneteforfl.OOO, payable on demand. ' Walters ii. MoBee, ILca(Tenn), 864. The evidence was that at the date named * Loring v. Gurney, 6 Pick. (Mass.) 15; the plaintiff lent the defendant $1,000, First National Bank v. Price, 52 Iowa, and at the same time received from hitn a 670. note for that sum, which had been lost, and ^ Rodgers v. Rosser, 57 Ga. 819 j Patter- could not be produced. There was no son v. Todd, 18 Penn. St. 426. evidence as to when the note became pay- « Dixon v. Nutall, 1 C. M. & R. 807. able, but the court held that it might be ' Sweet v. Irish, 86 Barb. (N. Y.) presumed that it was payable on demand, 467. § 12rL] BILLS, NOTES, CHECKS, ETC. 355 of which liie note is only to become payable in a certain contingency, the right of action does not accrue nor the statate begin to run there- on until such contingency accrues. Thus, in an English case,' C. being, alx>ut to open an account with a banking compan\-, gave them a promis- sory note, dated the 4th of December, 1855, whereby he aud S.. the defendant, jointly and severally promised to pay to the company, on de- mand, £200. At the same time the3- signed and delivered to the com- pany a memorandum stating that the note was given as a collatei-al security for the banking account intended to be kept b}- C, and tliat the company should be at liberty at any time thereafter to recover from them, or each of them, up to the full amount thereof, every sum wliich C. should at any time thereafter become indebted or liable to the company, for any moneys paid, lent, or advanced by them to or for him ; and in case of the company suing on the note, its production should be conclu- sive evidence of the amount claimed by them from C. being due and owing by him. The banking account was acconlingh- opened with C, and on the 31st December, 1855, he was indebted to the company in £173. Xo demand of pa^-ment was made, or balance struck, until the 30th June, 1856, when £194 was due from C. to the company. A balance was afterwards struck every half-year, the company from time to time making advances, and C. paying money into the bank with which his account was credited. The sums so credited exceeded the amount of the note. The account continued until February, 1861. when it was closed with a balance due to the company of £175. In March. 1S62, the company commenced an action against the defendant on the note. It was held that the cause of action was not barred by the statute of limitations. Upon this point Pollock, B. C., said : '• After much con- sideration we have arrived at the conclusion that the statute of limita- tions is not an answer. Had the security been in the form of a bond for £200 and a defeasance to the eflFect of the memorandum, the opera- tion and eflFect of the security would have been clear : and notwithstand- ing that the instrument is a promissory note payable on demand, which prima facie indicates present existing liabilit\- enforceable without de- mand, and as to which the statute of limitations runs from the date, we think we are bound to read it and the memorandum together in order to ascertain the true meaning and character of the transaction. It is clear that until an advance was made by the banking company to Courtney, no action could have been maintained upon the note. Until then there would have been no consideration, and until there was consideration no action would be maintainable, and the statute of limitations only runs from the time when the cause of action accrued. The question, therefore, is, when did the cause of action accrue? And nnless it accrued liefore the 2d March, 1856, the statute is no bar. It was contended before ns that the statate began to run from the 31st December, 1855, by reason of the 1 Hartland r. Jnkes, 1 H. & C. 6". 356 STATUTES OP LIMITATION. [CHAP. XII. debt of £173 Is. lie?., then due from Courtnej', the customer, to the bank ; but no balance was then struck, and certainly' no claim was made bj-tbe bank upon the defendant's testator in respect of that debt ; and we think that the mere existence of the debt, unaccompanied by any claim by the bank, would not have the effect of making the statute run from that date." A similar rule was adopted in a Missouri case,^ in whieh.it was held that where delaj^ in making demand is contemplated b^' the express terms of an obligation payable on demand, there is no rule of law which requires that the demand be made within the statutory period for bringing an action. Thus, where an obligation for the payment of money one day after date contained a condition that if the payee should demand paj'ment during her natural life, it should be due and payable ; ' but in case of her death before any or all of the debt should be paid, it should not be paid at all. A demand made by the payee more than ten years after the date of the paper was in time, and that an action brought immediately thereafter was not barred b^- limitation. Sec. 125. Notes or Bills payable " after Demand," " after Sight," &c. — As we have already seen, ^ a note or bill made payable "after demand," " after sight," is not payable until demand is made for pay- ment. If a note or bill is made paj'able twelve months after demand, the statute does not begin to run until the expiration of that period after demand, as the debt does not mature or become enforceable until that time;' and the same rule prevails as to notes, «&c., payable "after notice." * Notes or bills payable " after sight," ^ or " on sight," are not due until presented for payment ; ' consequently, if presented for payment for the first time within six j-ears before action brought, the statute does not bar them, although more than the statutory period has elapsed before presentment. In Michigan and Pennsjlvania the courts of law, follow- ing the rule in equity as to laches, held that, unless the statute is put in motion by a demand, within the period requisite to bar the action if it matured at its date, the right to make the demand, and consequently* the right of action itself, will be barred. In Ohio ' it is held — and this seems to be a consistent rule — that in all cases where a demand is necessary as a prerequisite to an action, and no demand in fact is shown, it will, in the absence of special circumstances, be presumed to have been made at the expiration of the period within which the statute would have run 1 Jameson v. Jameson, 72 Mo. 218. man, 4 Harr. (Del.) 246 ; Little v. Blend, ^ Ante, Tp.S17. 9 Pick. (Mass.) 488. A note payable " on ^ Wen man v. Mohawk Ins. Co., 13 sight " is not payable, and the statute does Wend. (N. Y.) 267 ; Wright u. Hamilton, not commence to run thereon, until after 2 Bailey (S. C), 61 ; Teroop v. Combe, 8 demand. Wolfe v. Whiteman, 4 Harr. D. & R. 374; Taylor v. Whitman, 3 (Del.) 246. Grant's Cas. (Penn.) 138; Cadman v. * Clayton v. Gosling, 5 B. & C. 360. Rogers, 10 Pick. (Mass.) 120; Richman ' Holmes o. Kerrison, 2 Taunt. 323. V. Richman, 8 N. J. L. 114 ; Holmes o. ° Wolfe v. Whiteman, ante. Kerrison, 2 Taunt. 323 ; Wolfe v. White- ' Kethler v. Foster, 22 Ohio St. 27. §1^5] BILI;S, NOTES, CHECKS, ETC. 357 upon the claim if it had been due from its date, and the statute is then set in motion. But, if the creditor makes a demand in fact within the last-named period, the running of the statute would start afresh from the time of such demand ; and where the statute is put in motion by the operation of a presumption, it is not arrested except by circumstances which destroy or overcome the force of the presumption.^ That a demand should be made witliin a reasonable time, appears from the dicta of many cases ; but there are none, except those from Pennsj-lvaniai and Michigan, in which a right of action has been denied because of delaj- in making de- mand, although in a recent case * there had been a delay of nearly twenty years. As to what is a reasonable time in which to make a demand de- pends upon the circumstances of each particular case, and is one of fact for the jury ; * and the doctrine prevailing in equity as to stale de- mands has no force in a court of law, and a strictly legal right cannot there be denied simply because it is old. If a note or bill is given pay- able upon a contingency, as " one day after " the happening of a certain event, the statute is not put in motion until the day after such event transpires.* In aD cases where the word "• months " is used in statutes of limitation or in contracts, unless otherwise provided by statute, lunar months is intended ; ' and a note payable Feb. 27. 1869. payable ' As to presumptions m reference to said: "The question is whether, in this demands, see ante, sec 11 S, "WTien Demand is necessary, &c In all cases where a de- mand is necessary before a note becomes due and payable, it is held that such de- mand must be made within the period of limitation. Craft v, Thomas, 123 Ind, 513; Landes c. Saxton (Mo.), 16 S. ^. 912. In Dougherty v. "Wlieeler, 125 Ind. 421, it was held that where a speedy demand or notice to pay would manifestly violate contract for letting chattels for twenty-six months, the won! * months ' means calen- dar or lunar months. !N^ow, in Simpson V. Margitson, 11 Q. B. 23, Lord Dfv mav said, p. 31: 'It is clear that "months" denotes at law "lunar montlia." unless there is admissible eridence of an inten- tion in the parties using the word to denote " calendar months." If the contest shows that calendar months were intended, the the intention and purpose of the contract judge may adopt that construction.' Here by which the creditor stipulated to extend a reasonable time, or where delay in mak- ing demand was contemplated by the ex- press terms of the contract, a demand need not be made within the statutory period. And in aU cases if a demand is made the statute will begin to run from the time of such demand. Cobum v. Monroe Baptist Oh., 60 Mich. 19S; Miller r. Hynes Co. (Miss.), S So. 269. 2 Brown o. Kntherford, 42 L. T. N. s. 659. » WaUace v. Agry, 4 Mas. (U. S. C. C.) 336. * Hathaway r. Patterson, 45 Cal. 294. * In Hutton v. Brown, 43 L. T. Bep. X. s. 343, this question arose under a lease of furniture for twenty-six months. Fey, J., in passing upon the question. the context throws no light on the mean- ing, except that the contract for weekly payments, I think, implies that Innar rather than calendar months are meant, in spite of Mr. Wilkinson's elaborate calcula- tions. . Then it is said that in mortgage transactions months are always calendar months, and that this is a mortgage trans- action. But the rule as to mortgages only arises from this, that the interest on mort- gage money is a fixed yearly sum, and therefore half a year's interest is for six calendar months. I cannot expand this into a mortgage transaction. The primary transaction is not a mortgage at all ; it is simply a contract for the hire of furniture. I therefore hold that the word ' months ' means ' lunar ' months." S58 STATUTES OF LIMITATION. [chap. XII. twelve months after date, becomes due Feb. 27, 1870, and an action commenced March 1, 1873 (the statutory period being three j-ears), is too late, even though the last day of February was Sunday.^ A note payable " at any time within two years " does not become payable until the expiration of two years, unless the holder elects to demand the same before that time, and the statute does not begin to run thereon until the two years are ended, unless the holder before that time (as he may) puts the statute in motion by a demand.^ The statute begins to run against the holder of a bill of exchange upon protest and notice for non-accept- ance, although the bill is not then due, and he does not acquire a fresh right of action on the non-payment to the bill when due.' His right of ' Hathaway v. Patterson, 45 Cal. 294. See also Morris v. Richards, 45 L. T. N. s. 210, to the same effect ; also, Hibernia Bank v. O'Grady, 47 Cal. 579. 2 Creighton v. Rosseau, 1 Iowa, 133. « la Whitehead i;. Walker, 9 M. & W. 505, to an action of assumpsit by a fourth indorsee of a foreign bill of exchange against the first indorser, alleging non-payment by the drawee, the defendant pleaded that before the debt became due, and after the indorsement to the third indorsee, and be- fore the indorsement to the plaintiff, the bill was refused acceptance and was protested, of which the third indorser and the plaintiff at the time of the indorsement to the plain- tiff had notice, and that the defendant did not have due notice of the non-acceptance. To a demurrer to this plea a replication of de injuria was held good. In passing upon this important question, Pakke, B., said: " The question raised by the pleadings in this case is, whether, if the indorsee of a foreign bill of exchange has presented it for acceptance, and (acceptance having been refused) has duly presented it and given notice to the drawer (for the defend- ant, the indorser, is in the same situation), and so has acquired a right of action against him by reason of the non-acceptance, a new right of action afterwards accrues to him on the subsequent presentment of the bill for payment, and non-payment according to its tenor. The plaintiffs, indeed, are not the indorsees who presented the bill, but they are averred to have taken the bill with no- tice of the fact of presentment and dishonor, and therefore stand in the same situation, and are not to be considered as having a title as innocent indorsees. Dunn ». O'Keefe, 5 M. & Sel. 282. The practical importance of the point in the present case arises from the delay of the holder in bring- ing his action. The non-acceptance and the protest thereon occurred in September, 1834. The bill, according to its tenor, would not be payable till the subsequent month of December, and this action was commenced in November, 1840; so that if a right of action accrued in December, 1834, the statute of limitations cannot be success- fully pleaded ; wherea.s, if there was no right of action accruing subsequently to the protest for non-acceptance in September, 1834, the statute is a bar. "On the part of the plaintiff it was contended, that although he undoubtedly might have brought au action in the month of September, 1834, founded on the non- acceptance, yet it was optional with him to do so or not ; that he might, if he thought fit, waive that action, and proceed merely on the ground of the subsequent non-pay- ment in December, 1834. For the drawer of a bill, it was contended, enters into a double engagement with the payee, and through him with tjie successive holders of the bill, namely, first, that the drawee shall accept the bill when regularly pre- sented to him for acceptance; and, secondly that he shall pay the bill when regularly presented to him for payment. And if this be a correct representation of the en- gagement entered into by the drawer, the conclusion seems unavoidable, that what- ever right of action the holder might have acquired by the non-acceptance, he cer- tainly is not precluded from suing in respect of the default of payment. But we are of opinion that the contract entered into by the drawer is not such as is contended for by the plaintiff, and that he in fact enters § 125.] BILLS, NOTES, CHECKS, ETC. 359 action becomes complete and perfect from the time of non-acceptance,* and the statute begins to run from that time." into one contract only; namely, in the case of a bill made payable after sight, that the drawee shall, on the bill being presented to him in a reasonable time from the date, accept the same, and having so accepted it, shall pay it when duly presented for pay- ment according to its tenor; and in the case of a bill payable after date, that the drawee shall accept it if it is presented to him before the time of payment, and having so accepted it, shall pay it when it is in due course presented for payment; or if it is not presented for acceptance at all, then that he should pay it when duly presented for payment. "The counsel for the plaintiff, in support of his view of the law, relied mainly on some passages which he cited from the work of ilarius on Bills of Exchange, some of which are adopted in Comyns's Digest, tit. ' Merchant ' (F. 8) and (F. 9). But with respect to those passages, we miLst remark that the work of Marios, though undoubt- edly one of authority in its way, is scarcely to be looked at as a legal treatise on the subject of bills of exchange. It is, as its title imports, a work giving good practical advice from a practical man to persons re- ceiving sind negotiating bills of exchange. The author was a public notary, who lived in the middle of the seventeenth century, when questions of mercantile law were much less perfectly understood than they are now. In some of his notions he was clearly mis- taken; as, for instance, he considers the holder of a biU of exchange to be in all cases bound to present it for acceptance; and it seems very doubtful whether he supposed the effect of non-acceptance to be anything more than that of rendering it incumbent on the drawer to find better se«nrity for the satisfaction of the holder. It is not, however, absolutely necessary to decide that Maiius is wrong, for he no- 1 iinier t>. Hackley, 5 Johns. (N. Y.) 384 ; ^Yeldon v. Buck, i id. 144. * The general rule on this subject is, that although the holder of a bill of ex- change is not bound to present it for ac- ceptance, yet if he thinks fit to do so, and acceptance is refused, he is bound to give notice of that fact to all the parties to the bill to whom he desires to resort for pay- ment, ilolloy, de Jure Martimo, b. 2, c 10; Chittv on Bills, 272 (9th ed.); Bayley on Bills, 252. And after presentment for acceptance and refusal, a right of action vests immediately, and the holder need not again present the bUl for acceptance. Hickling v. Hardey, 7 Taunt 312; 1 Moore, 61. Or if he does so, and accept- ance is again refused, he is not bound, if payment be also afterwards refused, to pro- test it for non-payment. De la Torre v. Barclay, 1 Stark. 7. For by the refusal of acceptance he acquires a complete cause of action against the drawer and the indorsers. Starke v. Cheeseman, 1 Ld. Kavm. 53S ; 1 Salk. 128. It is at that period, accordingly, that the liabilities of all the parties to the bill are to be determined ; and all who take the biU subsequently to the non- acceptance and protest, take it with all its infirmities. Crossley r. Ham, 13 East, 498. Unless, indeed, in the case of a subse- quent holder for value who takes it with- out notice of the dishonor. It follows from these principles of law, that another new cause of action cannot afterwards arise on the non-payment of the bill; if it could, then a recovery in an action brought on the non-aicceptance would be no bar to a subse- quent action against the same party on the non-payment. The drawing of a bill of exchange is the creation of a debt; it is evidence of an existing debt from the drawer to the payee. Starke e. Cheese- man, ante; Maearty ». Barrow, 2 Stra. 949; Bishop V. Young, 2 B. & P. 83 ; Work- man V. Leake, Cowp. 22. And the con- tract of the drawer is, that another person, the drawee, shall take upon himself pay- ment of such his debt, aceoiiJing to the terms of the bill; and the moment the drawee commits an unqualified breach of that engagement, the debt becomes payable immediately, and the right of action against the drawer is vested. And the existence of the two concurrent causes of action against the same party arising out of the same contract is repugnant to legal princi- ples. 360 STATUTKS OF LIMITATION. [(JHAP. XII. Sec. 126. Notes and Bills payable by Instalments. — Where a note or bill is made paj-able by instalments, tire statute attaches to and begins to run upon each instalment as it becomes due,^ and, according where lays down the proposition now in- sisted on, namely, that after a protest for uon-acceptance a second right of action accrues to the holder on the non-payment. He speaks, indeed, of the holder retaining the bill after non-acceptance, and applying ,for payment, and suing on default of pay- ment ; and this, as a matter of prudence, may probably be the wisest course which a party can pursue. In spite of the non- acceptance, the drawer still may pay the bill when at maturity, and the holder, hav- ing by protest and notice on non-acceptance put himself in a condition to sue the drawer, may very reasonably, as a matter of pru- dence, retain the bill, and endeavor to ob- tain payment when the bill is at maturity, and nob involve himself in litigation until there has been a failure of payment as well as of acceptance. It by no means, however, follows, because this is spoken of as being, what probably it still is, the usual course, that any second right of action arises on the second default. For, let us consider, what is the nature of the right which the holder acquires on the default of the drawee to accept. It is clear (what- ever might formerly have been considered on the subject) that by the non-acceptance, followed by the protest and notice, the holder acquires an immediate right of action against the drawer, — a right of action, be it observed, not in respect of any special damage from the non-acceptance, but a right of action on the bill, i. e. a right of action to recover the full amount of the bill. The effect of the refusal to accept is, according to the language of the Court of King's Bench in Macarty v. Bar- row, as quoted by Wilmot, C. J., In 3 Wils. 16, that the drawee says to the holder, ' I will not pay your bill ; you must go back to the drawer, and he must pay you.' The holder thus acquires by the non-acceptance the most complete right of action against the drawer which the nature of the case admits, and no sub- sequent act or omission of the drawee can give him a more extensive right against the drawer than he has already acquired. But further, on failure of acceptance, the holder is bound to give immediate notice to the drawer, and if he omits to do so, he for- feits all right of action against him, not only in respect of the default of acceptance, but also in respect of the subsequent non- payment. Now, it is very difficult to rec- oncile this doctrine with the notion that a new right of action arises from the non-pay- ment ; for if that were so, it could hardly be that such new right of action could be destroyed by the previous neglect to give notice of a matter unconnected with that out of which the second right of action is supposed to arise. The argument of the plaintiffs must be, that a second right of action on the bill arises from the default of payment in those cases only in which the holder has duly given notice of the non-ac- ceptance, i. e. in those cases only in which the holder, by the hypothesis, must have already acquired a right of action precisely similar to and coextensive with that which is thus supposed to vest in him by the de- fault of payment. This seems to us to be a proposition so much fraught with incon- sistency, and so entirely destitute of prin- ciple and authority, that we cannot hold it to be law. It may be added, that if the law were as is contended for the plaintiffs, this inconvenience would follow, that the holder of a bill might at the same time be prosecuting two actions on the same bill against the same party, for the recovery" of precisely the same sum." 1 Bush .,. Stowell, 71 Penn. St. 208. In Burnham v. Brown, 23 Me. 400 ; Evans's Pothier, 404 ; Heywood v. Perrin, 10 Pick. (Mass. ) 228 ; Tucker v. Randall, 2 Mass. 283 ; Eastabrook v. Moulton, 9 Mass. 258, the rule was thus forcibly expressed : where a note is made payable in several annual payments, the cause of action for the first payment accrues as soon as it becomes payable, and the statute begins to run against from that time, and not from the time when the latest sum becomes due. The statute does not begin to run on a deposit note given by a member of a mu- tual insurance company, whereby he agrees to pay a sum certain, or any part thereof, ' ' when required," and which by its terms § 126.] BILLS, NOTES, CHECKS, ETC. 361 to the authority of a leading English case,' if a bill or note is made pajable bj- instalments, with a provision that if one instalment fail the whole sum shall thereupon become due, the statute will commence to run upon the entire debt from the date of such default. It might be argued, however, that this is at variance with the well-known rule, that no one is obliged to take advantage of a forfeiture, — a point which does not appear to have been noticed in the argument, and which is entitled to considerable weight in such cases. It would seem, upon a fair appli- cation of the last-named rule, that the debtor by his default put himself in a position where his creditor might, if he elected to do so, treat the whole debt as due ; but it seems somewhat unreasonable to saj- that he thereby compels the creditor to treat the whole debt as due, so that the statute is, even against the creditor's will, put in motion to defeat his claim. The doctrine of the case referred to would also seem to favor forfeitures, whereas it is usually held that they are odious in law.^ In the case of interest payable annually, while it is held that an action may be maintained therefor at the end of each year, although the prin- cipal debt is not due, yet, with singular inconsistencj', it is held that, upon the ground that the principal carries with it all accessories, the statute does not begin to run upon any part of the interest until the principal debt matures.* But there are authorities, of respectable courts, which hold a contrary doctrine, and that the statute begins to run as to interest upon notes, where the interest becomes due and pay- able before the principal debt, from the time when it becomes due.* But, as will be seen,^ where coupons are given for interest, the stat- ute begins to run thereon from the date of their maturity, whether they are detached from the instrument on which the interest accrued or not, as each of them is a negotiable insti'ument and evidence of a distinct and independent debt. In the case of a note payable with interest annually, a voluntary payment of the interest operates to keep the principal debt on foot, because it amounts to an acknowledgment of it as still subsisting, and aflFords a ground for an implied promise to pay it ; * but the recovery of the interest in an independent action brought therefor does not have that effect, because the payment is involuntary and repels rather than sustains any implied promise to pay the debt from which the interest arose.'' is a part of the absolnte funds of the com- Kellogg, 2 ilass. 56S; Cooley «. Bose, 3 Id. pauy until an assessment is laid. Bigelow 221. •0. Libby, 117 Mass. 359. * Heywood o. Perrin, 10 Pick. (Mass.) 1 Hemp V. Garland, 4 Q. B. 519. 228; Bush ». Stowell, 71 Penn. St. 208; ' See also Banning on Limitations, 26. Bnrnham v. Brown, 23 Me. 400 ; Easta- » Grafton Bank v. Doe, 19 Tt 463 ; brooke v. Moulton, 9 Mass. 258. Henderson ». Hamilton, 1 Hall (X. Y. ^ Pos(, sec. 127, Coupons, &c. Sup. Ct.), 314 ; Ferry v. Ferry, 2 Cush. « Green v. Greensboro Coll^, 83 ST. C. (Mass.) 92. That an action lies as fast as 449. the interest accrues due, see Steams v. ^ Morgan u. Rowlands, omtty Harding Brown, 1 Pick. (Mass.) 530; Greenleaf v. v. Edgecombe, 4 H. & N. 872. 862 STATUTES OF LIMITATION. [chap. XII. Sec. 127. Coupons, Interest 'Warrants, &c. — The statute of limita- tions begins to run against coupons or interest warrants from the time they respectivelj' mature ; and this is so even though the}' are not detached from the bond which represents the principal debt.' Such instruments are, if payable to bearer, negotiable, and a right of action accrues upon them as soon as they become due in the hands of anj' person who is the legal bearer of the same." Thej- are treated as prom- issorj' notes negotiable by the law merchant.^ ^ Amy V. Dubuque, 98 U. S. 470, same rule as to detached coupons ; Clark v. Iowa City, 20 Wall. (U. S.) 583; contra, see Lexington v. Butler, 14 Wall. (U. S. ) 282; Kenosha v. Lamson, 9 id. 477. Where coupons are made payable semi-annually, on " presentation of the respective coupons hereto attached," it was held that an action could be brought thereon without presenta- tion, although they n*d not be paid until delivered up. Warner v. Eising Fawn Iron Co., 3 Woods (U. S. C .C), 514. 2 Evertsen v. Nat. Bank of Newport, 66 N. Y. 14; Cooper v. Thompson, 13 Blatch. (U. S. C. C.) 434; BaHey v. Lan- sing, 13 id. 424. 3 Cooper V. Thompson, ante. The rule in such cases is, that, unless the payor has put it out of his power to pay in the kind of property stipulated for, a note payable in specific articles, on demand, does not become due until deniand is made ; but when a demand has been made and the payee fails to pay, the payee then becomes entitled to be paid in money. Thus, the payee of a demand note payable in hem- lock bark, given Feb. 19, 1863, demanded payment in the summer of 1863, according to its terms, requesting the defendant to have the bark peeled during the summer, the season for peeling bark, and delivered the next winter, usually the best time to draw it, all which the defendant agreed should be done. Held, that this demand was most appropriate to such a note, and the defendant by failing to answer it, as he promised, became liable to pay the note in money. The payee could therefore recover upon the money counts. Read v. Sturte- vant, 40 Vt. 704. In Thrall v. Mead, 40 Vt. 540, a note dated March 14, 1832, made " payable in officer's fees as constable," although not in teims expressed to be pay- able on demand, or on request, was held by legal construction so payable; and no demand having been made until 1859, it was held that the note was barred by the statute of limitations. Where a debt is payable in specific property, a new contract made before the debt has become payable, changing the mode of payment, and ex- tending the time, needs no new considera- tion for its support. The general rule in case of such debt is, that no action accrues until request or demand, and that the stat- ute does not commence to run until de- mand is made ; but the creditor may be guilty of such unreasonable neglect in omitting to make demand as will set the statute in operation without demand. Where a note of |400, dated Feb. 19, 1827, was payable in instalments in grain, the last instalment April 1, 1832, and in June, 1829, it was agreed between the plain- tiff and maker that the plaintiff should not call for the grain until the last instal- ment became payable; and in the mean time the maker was to render snch services as constable for the plaintiff as he should call for, from time to time, which were to apply on the note ; and before April 1, 1832, the parties agreed that the bahnce due should be postponed to an indefinite period, and that the plaintiff should still continue to receive his pay in the services of the maker as constable, the latter agree- ing to render such services as called for from time to time, and if any balance still remained due, after deducting such ser- vices, the same should be payable at any time after April 1, 1832, in grain, upon giving reasonable notice to pay m grain, — it was held that no new consideration was required to support this agreement as to mode of payment or extension of time. It was held that this case was distinguish- able from those where the debt was already due and payable in money when the new agreement was made; and the maker hav- ing ceased to be constable in 1845, the § 127.] BILLS, NOTES, CHECKS, ETC. 363 "When payment is provided for out of a particular fund to be created bj- the act of the debtor, he cannot plead the statute of limitations until he shows that that fund has been provided.'' In that case; an action was brought against the county to recover the principal and interest upon certain bonds and coupons issued by the county. By the statute of limitations existing at that time in Nevada, some of the coupons were barred. But there had been this special legislation in reference to those coupons : The bonds were issued under the funding act of 1873. In 1877 the county was delinquent in its interest, and the legislature passed an act amendatory to the act of 1873. This amendatory act provided for the registering of overdue coupons, and imposed upon the treasurer thereafter paying the coupons, as money came into his possession applicable thereto, in the order of their registration. The coupons, which by the statute of limitations would have been barred, were presented, as they fell due, to the treasurer for payment, and pay- ment demanded and refused because the interest fund was exhausted. Thereupon the treasurer registered them as presented, in accordance with the act of 1877, and from the time of their registration to the com- mencement of this action there was no money in the treasury applicable to their payment. Brewer, J., in delivering the opinion of the court said : " This act provided for registration and for payment in a particular order, for a new provision for the paj-ment of these bonds which was accepted bj' the creditor, and created a new right upon which he might rely. It provided, as it were, a special trust fund to which the coupon holder might in the order of registration look for paj-ment, and for payment through which he might safely wait. It amounted to a promise on the part of the county to pay such coupons in the order of their registra- tion, as fast as money came into the interest fund, and such promise was by the creditor accepted ; and when payment is provided for out of a particular fund to be created by the act of the debtor, he cannot plead the statute until he shows that that fund has been provided." ^ Each coupon upon a bond, municipal or otherwise, is a complete instru- ment capable of sustaining separate actions without reference to the maturity or ownership of the bonds.* And it seems that interest upon these coupons is collectible from the time when they become due.* In the case last cited the court, recognizing the fact that manj- courts of high authority disallow interest upon interest, followed that rule ; yet balance then unpaid on the note became 2 Underhill v. Sonora, 17 Cal. 172; payable in grain upon reasonable notice or Freehill v. Chamberlain, 65 Cal. 603; see demand by the plaintiif, and it was held also, Nash v. Eldarado Co., 24 Fed. Rep. that six years from 1845 was the limit 255. of a reasonable time in which to make s j^y ^ Dubuque, 98 TJ. S. 470 ; demand, and that after the expiration of Comm'rs of Knox Co. v. Aspinwall, 21 that six years the statute began to run. How. (U. S.) 539 ; Eoshkonong v. Bur- 1 County of Lincoln v. Ificholas Lun- ton, 104 U. S. 668. ing. 133 U S. 529. * Mills v. Jefferson, 20 Wis. 50. 364 STATUTES OF LIMITATION. [CHAP. XII. it expressed its approval of that doctrine in wliicli it was adjudged that an express agreement in a note or bond to paj- interest at a specified time, as annually or semi-annuall}', entitled the holder to interest upon interest from the time it became due. For, said the court, when a per- son agrees to interest at a specified time, and fails to keep his under- taking, whj' should he not be compelled to pay interest upon interest from the time he should have made the payment. If he undertakes to pay a sum in a given time to the owner, and makes default, the law al- lows interest-on the sum wrongfully withheld, from the time he should have made such payment.^ Sec. 128. Notes payable in Specific Articles. — Where a note is made payable in specific articles on demand, an action cannot be main- tained thereon until a demand is made for payment.* Thus, where a note was made payable " in produce or wood from the farm on demand as the pajee maj' want to use the same," it was held that a lapse of twelve years without a demand did not bar an action on the note, in the absence of proof when as a matter of fact a reasonable time for making the demand expired, or of facts from which the law would assume a limit to such reasonable time ; ^ and the same rule was adopted in a case where a note was made payable in " bankable pap&r when wanted." ^ But if a note is payable in specific articles, and the time and place of payment is fixed, the plaintiflT's right of action becomes complete, unless the paj'ee was present at the place on the daj- fixed for payment, ready to perform ; in all other cases, however, a demand before action brought is necessary to put the statute in motion. The rule in such cases is that unless the payor has put it out of his power to pay in the kind of property stipulated for, a note payable in specific articles on demand does not become due 'until demand is made ; bq,t when a demand has been made, and the payor fails to paj-, the payee then becomes entitled to be paid in monej-. Thus, in a Vermont case,* the payee of a demand note, paj'able in hemlock bark, payable Feb. 19, 1863, demanded payment in the summer according to its terms, re- questing the defendant to have the bark peeled during the summer, the season for peeling bark, and delivered the next winter, usually the best time to draw it, all which the defendant agreed should be done. It was held that this demand was most appropriate to such a note, and the defendant by failing to answer it, as he promised, became liable to pay the note in money. In another Vermont case,' a note dated March 14, 1832, made payable in officer's fees, as constable, although not in terms express, to be pay- able on demand or on request, was held by legal construction so payable, 1 See also Walnut v. Wade, 103 U. S. ^ Stanton v. Stanton, 37 Vt. 411. 683 ; Genoa v. Woodruff, 92 U. S. 902 ; = Harbor v. Morgan, 4 Ind. 168. Aurora v. West, 7 Wall, 82 ; Gelpckev. * Read v. Sturtevant, 40 Vt. 04.7 Dubuque, 1 id. 175 ; Pruyn v, Milwaukee, ' Thrall v. Mead, 40 Yt. 540. 18 Wis. 367. § 129.] BILLS, NOTES, CHECKS, ETC. 365 and no demand having been made until 1859, it was held that the note was barred by the statute of limitations. Where a debt is payable in spe-, ciflc property, a new contract made before the debt has become payable changing the mode of payment and extending the time, needs no new construction for its support. The general rule in case of such a debt, is that no action accrues until request or demand, and that the statute does not commence to run until the demand is made ; but the creditor may be guilt}^ of such unreasonable neglect, in omitting to make demand, as ■will set the statute in motion without demand. Where a note of $400, dated Feb. 19, 1827, was paj-able in instalments in grain, the last instalment April 1, 1832 ; and in June, 1829, it was agreed be- tween the plaintiff and the maker that the plaintiff should not call for the grain until the last instalment became payable, and in the mean time the maker was to render such services as constable for the plaintiff as he should call for from time to time, which were to apply on the note, and before April 1, 1832, the parties agreed that the balance due should be postponed to an indefinite period, and that the plaintiff should still continue to receive his paj' in the services of the maker as constable, the latter agreeing to render such services as were called for from time to time, and if any balance still remained due after deducting such ser- vices, the same should be paj'able after April 1, 1832, in grain. Upon giving reasonable notice to pay in grain, it was held that no new con- sideration was required to support this agreement as to mode of paj-- ment or extension of time, and that the case was distinguished from those where the debt was due and payable in monej'^ when the new agreement was made, and the maker having ceased to be constable in 1845, the balance then unpaid on the note became paj'able in grain, upon reasonable notice or demand by the plaintiff, and six j'ears from 1845 was the limit of a reasonable time in which to make demand, and after the expiration of that six years the statute began to run.' Sec. 129. Notes subject to Assessment. — Where, as is the case with notes given to mutual insurance companies, premium notes are given, subject to assessment by the company, at such times and in such sums, not exceeding in all the sum for which the note is given, but not payable in full, at all events, the statute does not attach to the note afr all, until an assessment is made by the company for the purposes con- templated and a demand is made therefor, or the method of notice pro- vided by statute has been complied with, and then it attaches only to the amount assessed, and begins to run thereon from the date of n'otice or demand, leaving the balance unaffected by the statute. ^ But, in 1 Thrall v. Mead, 40 Vt. 540. it was held that where a premium note 2 Hope Mut. Ins. Co. v. Perkins, 2 Abb. given to a mutual insurance company, App. Deo. (N. Y. ) 383; Hope Ins. Co. v. which has been regularly assessed to its Weed, 28 Conn. 51 ; Howland v. Edmonds, full amount, the time of payment fixed, 24 N. Y. 307; Howland v. Cuykendall, 40 and notice of the assessment duly pub- Barb. (N. Y.) 320 ; Sands v. St. John, 36 lished, the statute begins to run from that id. 328; Savage i>. Medbury, 19 (N.Y.) 32. date, without a personal demand. In re Thus in Sands v. Lilienthal, 46 N.Y. 541, Slater Mut. Fire Ins. Co., 10 R. I. 42. 366 STATUTES OF LIMTTATIOIT. [CHAP. XII. case the statute does not provide the manner In which notice of such assessment shall be given, the statute does not begin to run thereon until demand is made therefor.^ But a different rule is adopted where the statute provides the manner in which notice of the assessment shall be given, and the statute in such cases begins to run from the time when notice as required bj^ the statute is given. ^ And the same rule prevails as to guaranty notes, or notes given as a part of the capital of the company, assessable as the directors may direct.' But in New York, in tlie cases last cited, it was held that where such notes are payable at all events, although in terms payable at such times and in such portions as the directors maj' require, they are nevertheless in legal effect payable on demand. But this is upon the ground that the Statute required all such notes to be made payable within twelve months, consequently they are treated as due absolutelj' and immediately, and that tlie statute begins to run thereon from their date. But in a Con- necticut case,* a doctrine apparently different from this was held ; but an examination of the latter case shows that there is in reality no con- flict of doctrine. In that case, a note was given in the following terms : — $2,500. New York, 1st May, 1847. Twelve months after date, or sooner if required, I promise to pay to the Hope Mutual Life Insurance Company of Stamford, Connecticut, or order, two thousand five hundred dollars, or such assessments on the same as the trustees find it necessary to impose, for the purpose of paying losses, agree- ably to the terms of my subscription to the guaranty fund of said company, dateii 19th April, 1847, for value received. Nathl. Webb. It will be observed that this note in terms is made paj-able in twelve months from its date ; but it is also made subject to the terms and con- ditions of the defendant's subscription to the guarantee fund of 'the companj^, of the date named, ^ and that was as follows : " Whereas it has been deemed advisable by the Hope Mutual Life Insurance Com- pany of Stamford, Connecticut, to create a fund for the indemnity of persons insured by said company, as a security in addition to expected ^ Sands®. Annesley, 56 Barb. (N. Y.) from the time the directors make the 598 ; Howland v. Cuykendall, 40 id. call. 320. i Hope Mut. Life Ins. Co. v. "Weed, 28 2 Sands v. Lilienthal, ante. Conn. 51. 8 Howland v. Edmonds, 24 N. Y. 307; « And there were no statutory pro- Bell V. Yates, 33 Barb. (N. Y.) 627; visions in Connecticut requiring such Sands v. St. John, 36 id. 682 ; Colgate v, notes to be made payable absolutely within Buckingham, 37 id. 177. In Western twelve months from date, as there were in R. R. Co. V. Avery, 64 N. C. 491, it was New York, under which the cases from that held that the statute begins to run against State were decided. Bell v. Yates, 33 an action upon a subscription to stock of a Barb. (N. Y. ) 627; Sands v. St. John, 36 corporation as to each instalment called in, id. 628 ; Howland v. Edmonds, ante. § 130.]- BILLS, NOTES, CHECKS, ETC. 367 profits, the subscribers hereto have agreed with the said company to contribute to the said fund the amounts respectively set opposite their names, by giving their promissory notes payable in one year, upon the condition that the same shall be held by the said company for the sole purpose of paying losses -which shall accrue upon the policies issued by the said company, and shall not be used until the other funds in the hands of said company shall have been first applied ; that, for any deflciencj- after the application of said funds on account of such losses, the said notes shall be subject to assessment for the amount required ; that the said indemnitj' fund shall in no event be liable for the expenses of said company, or claims against them, other than those arising upon policies issued by them ; and in the latter case, only after all other funds of said companj' have been exhausted ; that for the loan of said notes the subscribers shall be entitled to an allowance at the rate of six per cent per annum, so long as the said company shall hold the said security ; that, whenever a surplus of capital shall have been acquired- by the company out of the profits of business, to the amount of $25,000, the indemnity herein provided shall cease, and the notes or securities shall be returned to the subscribers respectively ; it being, however, understood that the subscribers hereto maj', in lien of having such return, absorb the amount of their notes in premiums or policies on their own lives, or lives of others procured through their agency. To which terms and conditions the said company assent, and agree to hold the said security in conformity thereunto. Stamford, 19th April, 1847." This the defendant and others subscribed ; and in compliance with its terms the note in suit was executed, and made subject to it. In 1854 an assessment of seventj'-five per cent was rendered necessary, and was properlj' made upon the note. The defendant insisted that the note became due absolutely in twelve months from its date, and that it was barred by the statute. But the court held that it must be construed in connection with the agreement, and that bj- its terms no action could be sustained upon it until an assessment was made upon it, and that the statute did not begin to run upon anj- part of the note until that time. In this respect, the case diflfered from the New York cases, and cannot, in any sense, be said to conflict with them.'' Where security notes are given to joint-stock insurance companies which, bj' the tei'ms of its charter, are to become its absolute property, the statute begins to run thereon from the time they respectively become due.* Where a right to assess stockholders of a corporation of any kind exists by statute, the statute only begins to run thereon when an assessment is lawfully made.' Sec. 130. Bill of Exchange payable at Particular Place. — Where a bill of exchange is made payable at a particular place, as at the 1 See also Hope Mut. Life Ins. Co. v. » Osgood v. Strauss, 56 N. Y. 672. Taylor, 2 Robt. (K. Y. Sup. Ct.) 278, ' Com. v, Cochituate Bank, 8 Allen Where the same rule is adopted. (Mass.), 42. 368 STATUTES OF LIMITATION. [CHAP. Xlt Granite Bank in Boston, it does not become due and paj-able, so that an action can be maintained thereon until after a demand at that place and its dishonor there ; ^ " therefore," says Stoet, J., in the case last cited, " the statute of limitations begins to run from the time of such demand, and not from the time when the bills were paj-able according to their tenor." ^ The liability of the drawer of a bill of exchange to a subsequent indorser dates from the dishonor of the bill, and not from the time when the indorser paid it.^ Sec. 131. Bills accepted after Maturity. — As a bill of exchange may be accepted after it is overdue,* there can be no doubt that the stat- ute begins to run thereon from the date of its acceptance, although this precise question does not seem to have been decided.^ But in the case of a note dated January 1, but not delivered until July 1, it has been held that the statute begins to run thereon from the daj- of its issue, and not from the day of its date ; * but in the case referred to the note was payable on demand, and was delivered to a third person in escrow until certain conditions had been complied with.' In another English case,* a married woman, being administratrix, received a sum of money in that character, and lent the same to her husband, and took in return for it the joint and several promissory notes of her hus- band and two other persons, payable to her with interest. The note was dated Nov. 20, 1817. The husband died in 1827, and after his death, to an action brought by her against the other parties to the note, they set up the statute of limitations in bar of the action. The court held that, although she could not have maintained an action on the note during her husband's lifetime, yet, that he having died, and it having been given for a good consideration, it was a chose in action surviving to the wife, and that she might maintain an action thereon at any time within six years from the time of his death. But, while the rule as stated might prevail as to notes payable on demand or as to bills indorsed when overdue, such is not the rule as to the indorsement of a note by a third person payable at a fixed time after it becomes due. In the latter case, the statute runs from the time when the note became due ; and the indorsement, instead of creating a new contract so as to start the running of the statute afresh from that date, is merely accessary to the old contract, and does not suspend or in any wise affect the operation of the statute on the note.° But the maker 1 Picquet D.Curtis, 1 Sum. (U. S. C. C.) ^ Benjamin's Chalmers's Digest, art. 478. This also is the rule in France, art. 252, suhd. 2. 123, Code of Commerce; also arts. 173 and ^ Savage v. Aldren, 2 Stark. 232. 174, according to Stoey, J., in the fore- ' Hill v. Henry, 17 Oliio, 9; Richards going case. v. Richards, 2 B. & Ad. 447. 2 Rowe i>. Young, 2 B. & B. 165. * Richards v. Richards, ante. = Hunt V. Taylor, 108 Mass. 608. ^ Scarpelini v. Atchison, 7 Q. B. 864. * Williams iJ.Winana, 14 N. J. L. 339; See Webster v. Kirke, 17 id. 947, where it Spaulding v, Andrews, 48 Penn. St. waS suggested that, as to the statute of 413. limitations, under such circumstances, the § 132.] BILLS, NOTES, CHECKS, ETC. 369 of the note may revive it by indorsing his name on the back thereof after the statute has run upon it. Thus, the maker of a note, twenty years after its maturity, signed his name on the back of it, and it was held that an action lay against him on the note at any time within six years from the date of such indorsement,^ as such indorsement operated as an acknowledgment in writing that the debt is due and payable, and also to a new promise to pay it.^ Sec. 132. Bills and ITotes subject to Grace. — Where a bUl, note, or other obligation is subject to grace, the statute begins to run there- on only from the last day of grace.= But, the mercantile usage in the matter of grace, having the effect of law, where a bill or note falls Aae- on Sunday it is treated as due on the previous Saturday, and the stat- ute begins to run from that time. Thus, in an English case ^ involving this question. Wills, J., thus stated both the facts of the case and the- law applicable thereto. He said : " This is an action on a promissory note at three months, dated 11th March, 1874, which would, therefore, prima facie, be due on the 14th June, 1874. The 14th June, 1874,. was a Sunday. The writ in the action bears date the 14th June, 1880. The defence is that the cause of action did not accrue within, holder for the time being might he treated as a trustee of the action ; so that prior or subsequent indorsees are, as between them- selves and earlier parties, prejudiced by his laches. 1 Bourdin v. Greenwood, L. E. 13 Eq. 281. 2 See Chasemore v. Turner, L. E. 10 Q. B. 500; In re Steamer Co., L. E. 6 Ch. App. 828, as to the requisites of an ac- knowledgment in writing. * Pickard v. Valentine, 13 Me. 512 ; Kimball v. Fuller, 13 La. An. 602. An action brought upon a note or bill upon the day it becomes due is premature. Skid- more V. Little, 4 Tex. 301 ; Wilcombe v. Dodge, 3 Cal. 260; and if the note is enti- tled to grace, an action on the last day of grace is also premature. Smith v. Ayles- worth, 40 Barb. (IST. Y. ) 104 ; Oothout v. Ballard, 41 id. 33. The maker has the whole of the last day of grace to pay the note in Taylor v. Jacoby, 2 Penn. St. 495 ; Wiggle V. Thompson, 19 Miss. 452; Lunt V. Adams, 17 Me. 230. But in Maine it is held that an action may be commenced on the last day of grace if there has been a demand made, or if the note is payable at a bank, and the suit is commenced after banking hours, Veazie Bank v. Winn, 40 Me. 62 ; Vandesande v. Chapman, 48 Me. VOL. t. — 24 262; but this is not the general rule, and' the cases generally make no distinction- in this respect, because a note is payable- at a bank, Smith v. Aylesworth, ante ;. Oothout v. Ballard, ante. In South Caro- lina it is held that a person may be sued' on a note or biU on the last day of grace. McKenzie v. Burant, 9 Rich. (S. C.) 61;.- Wilson C.Williams, 4 N. & McCord (S.C.), 440. Another matter in reference to notes or bUls, so far as the time when a right of action accrues against an indorser is con- cerned, must be borne in mind, and that is- that an action will not lie against him, nor against a drawer of a bOl, until every pre- liminary step has been taken necessary to- fix his liability absolutely. Green v. Dar- ling, 15 Me. 139. Consequently if he lives- in the same town or city, an action will not lie against him until notice of protest is actually served, New England Bank v. Lewis, 2 Pick. (Mass.) 125 ; whereas if he lives in another town, an action lies imme- diately after the notice is put into the post- office. Shed V. Brett, 1 Pick. (Mass.)- 401; Stanton v. Blossom, 14 Mass. 116; Flint ii. Rogers, 16 Me. 67. * Morris v. Richards, 45 L. T. n. s. 210 ; reported also 25 Alb. L. J. 53. See also Hibemia Bank v. O'Grady, 47 Cal. 579, to the same effect. 370 STATUTES OF LIMITATION. [CHAP. XII. six years before the commencement of the action. The general rule of law is, that when the last of the days of grace falls on a Sunday, the bill or note is payable on the Satui-day. It is contended, however, that though the note was payable on the Saturdaj-, no cause of action arose till the expiration of the third day of grace ; in short, that although after business hours on the Saturday' nothing that the maker of the note could do could prevent the state of things then constituted from ripening into a cause of action, none existed until after twelve o'clock on Sunday night, — a proposition which there is no difficulty in understanding, but for which, as it seems to me, there is no authority. The so-called period of grace is not a definite period laid down by express enactments ; its existence is an incident annexed by mercantile usage to a bill or note. It has its origin and foundation .in mercantile usage and nothing else. As late as 1695 it was still the subject of evidence, and proved like any other mercantile custom by the testimony of witnesses.'' It must be taken now to be established as a part of the law mercantile, that a bill or note which, according to its terms, imports an obligation to pay on a given date, really obliges the party to pay in ordinary cases on the third day after each date ; but looking to the way in which that proposition, now one of law, has come to be one of that nature, it is evident that it merely expresses the result of the general practice of mercantile men, and that the proposition must be taken subject to such limitations as are established by equally universal practice. One of those limitations is that if the third day be a Sunday the bill or note is payable on the previous day. Prima facie, the obligation to paj' on the third daj' in the one case, and on the sec- ond in the other, must rest upon grounds of precisely the same kind ; namely, it must depend upon the universal practice that payment which prima facie would have to be made on a given day was made at a date later bj' three days in the one case and by two in the other. I see, therefore, no ground prima facie for supposing that different conse- quences are to follow if the third daj' in the one case, or second day in the other, be allowed to elapse without payment having been made. In either case, prima facie the cause of action is complete, and it lies upon those who set up the distinction to establish it. If it exists at all, it must be by virtue of mercantile usage so well recognized among mercantile men as to have passed into law. Not only is there no trace of it in any book, but it is very difficult to see how there could ever have been such a state of things as would have afforded evidence of such a custom, excepting in such a case as the present. There would not and there could not be any thing to bring it to the test, unless a writ could be issued on Sunday, and unless it were frequently material whether the writ were issued, or at all events issuable, on the Sunday instead of the Monday. No custom amongst mercantile men could 1 Tassell v. Lewis, 1 Ld. Raym. 743. § 133.] BILLS, NO^ES, CHECKS, ETC. 371 grow up in respect to such a matter, and it is inconceivable that at the date when Tassell v. Lewis, uhi sup., was tried before Holt, C. J., any such proposition could have been established by evidence. For these reasons I am of opinion that the cause of action arose as soon as the 13th June, 1874, was passed, and that, subject to a second question now to be considered, the writ issued on the 14th June, 1880, was a day too late. It happens, however, that the 13th June, 1880, was a Sunday, so that no writ could be issued on that day, and it is said that under Order LVII. r. 3, of the first schedule to the Judicature Act of 1875, the cause of action did nevertheless arise within six jears of the commencement of the action. I am of opinion that this rule has no such application in this case. The "time for doing anj' act " in this rule refers to times limited by the practice of the court for taking pro- ceedings ; and the effect of the rule is, that in the cases to which it is applicable, a proceeding which but for that enactment would not, if taken on Monday, be duly taken according to the practice of the court, whether established by definite enactment or otherwise, shall never- theless be held to be duly taken. It certainly was never intended that the provision should affect the statute of limitations. The writ in this case was "duly issued" on the Monday, without the protection of Order LVII. r. 3, and there is nothing in the enactment to alter the actual date of the commencement of the action. For these reasons, my judgment must be for the defendants, and with costs." In a California case,^ a note was given dated Feb. 27, 1869, pay- able twelve months after date, and it was held that it fell due Feb. 27, 1870; and that an action commenced on it March 1, 1873, was too late to save the note from the operation of the statute, although the last day of February, 1869, was Sunday. Sec. 133. Notes Payable upon the happening of a Contingency. — Where a note made payable upon the happening of a certain event also contains a clause as follows : " or as soon as otherwise eom^enient," — it is payable in a reasonable time ; and if the maker makes a payment thereon within a certain time, as within sixty days from its date, the parties will thereby be treated as having fixed upon that as a reasonable time, and the statute wiU begin to run on the note from that time.^ If, however, there are no qualifying words, but a certain event or contin- gency is absolutely fixed upon, the statute wUl not begin to run until the event or contingency occurs.' An accommodation indorser, or one who indorses for the maker with- out any consideration, cannot recover of the maker except upon the note ; consequently as to him the statute begins to run from the time the note became due, and not from the time of its payment by him ; * and although he paid the note before the statute had run thereon, yet 1 Hibernia Bank v. O'Grady, ante. ' Gueno v. Soumastre, 1 La. An. 44. 2 Jones V. Eisler, 3 Kan. 134. ' "Williams v. Durst, 25 Tex. 667. 372 STATUTES OF LIMITATION. [CHAP. XII. if more than six years have elapsed between the time the note became due and the commencement of the action, he cannot recover of the maker. In other words, his relation to the note by its payment is simpl}' the same that the holder held thereto, and he can enforce no right against the maker which the holder could not enforce. ■" But in the case of an accommodation acceptor it is held that the statute begins to run from the time he paj's the bill, and not from the time when it became due.* Sec. 134. Indorser of Notes or Bills. — The indorsement of a bill after it is dishonored creates a new contract as to the indorser and indorsee. Thus, if A. is the holder of a dishonored bill, and three j'ears afterwards he indorses it to B., while the indorser must sue the acceptor within six 3-ears from the time when the bill matured, yet he has six 3'ears from the date of the indorsement in which to sue A.^ The reason for this rule is that by the indorsement the indorser con- tracts to pay the bill if the acceptor does not ; and as the indorsement creates a new contract as between him and the indorser, it outlives the validitj' of the bill as to the other parties, and the statute only begins to run from the date of indorsement, because that is the time when the right of action accrues against the indorser.* No cause of action arises against an indorser of a promissory note payable on demand, at a place specified, nntil demand is made in com- pliance with the terms of the contract and due notice of non-payment ; a demand by letter is insufficient. The holder of the note is not charge- able with neglect for omission to make such demand within a particular time. Until, therefore, demand is made at the place named, the statute of limitations does not begin to run in favor of the indorser.^ Sec. 135. Acceptor of Bill. — The statute runs in favor of the acceptor of a bill who accepted it before it became due, from the day the bill becomes payable, and not from the date of the acceptance ; ^ but if a blank acceptance is given to a person, and ten years afterwards he fills it up as a bill payable three months after date, and negotiate* it to a bona fide holder, the statute does not begin to run thereon until it is paj-able.' If, however, a bill is accepted after it is due, the statute begins to run from the date of acceptance, because it is payable instanter.' Sec. 136. Drawer of Bill. — If a bill of exchange drawn payable sixty or any other number of days after sight, is presented for accept- ance before it becomes due, and is dishonored by non-acceptance, the statute begins to run in favor of the drawer from the time when it was so dishonored and notice thereof sent to the drawer, and not from the 1 Williams v. Durst, ante; Woodruff ti. * Woodruff v. Moore, 8 Barb. (N. Y.) Moore, 8 Barb. (N. Y.) 171; Kennedy v. 171; Whiteheads. Walker, 9 M. & W. 506. Carpenter, 2 Whart. (Penn.) 344; Hoyt * Parker v. Stroud, 98 N. Y. 379, ra- V. Eeed, 2 Blackf. (Ind.) 369. versing 31 Hun, 578. 2 Reynolds r. Doyle, 2 Scotf N. P. 45. « Holmes v. Kerrison, 2 Taunt. 323; In Bullock u. Campbell, 9 Gill (Md.), 182, Fryer v. Roe, 12 C. B. 437. this was also held to be the rule In the case ' Montague v. Perkins, 22 L. J. C. P. of an accommodation indorser. 187. ' Benjamin's Chalmers's Digest, 256. ^ Benjamin's Chahners's Digest, 256. § 137.J BILLS, NOTES, CHECKS, ETC. 373 time when it becomes payable.^ But if a person accepts a bill to accom- modate the drawer, and afterwards paj's it, the statute begins to run from the time of payment, upon the implied agreement to indemnify him, and not from the maturity of the bill.'' But it seems that, in such a case, if the action is brought upon the bill instead of upon the implied contract to indemnify, the statute runs from the time when the bill was payable.^ Sec. 137. Suspension of Statute by Agreement of the Parties. — The running of the statute may be suspended bj^ the mutual agreement of the parties.* Thus, in a Virginia case,' a mutual understanding and agreement between the debtor and creditor that a suit should not be brought upon an account until the debtor should go to Europe, and return, was held a good answer to the act of limitations during his absence from the country, and also competent proof to prevent the court from expunging from such account items that were apparentlj* barred by the statute. In a Texas case,^ in an action on a note the defendant filed an account in offset, to which the plaintiff set up the statute of limitations. It being shown that the articles charged in the account were by agreement to go in reduction of the note, it was held that the account was saved from the operation of the statute by the agreement. But, in order to suspend the operation of the statute, there must be an agreement for delay ; and the mere fact that nego- 1 Whitehead v. Walker, ante; Woode creditors to sign an instrument by which they bound themselves not to sue or molest him for his indebtedness for two years, and it was held that so doing was equivalent to an agreement not to plead the two years as a part of the statute of limitations, and operated, to extend the limitation of the statute two years. In Reynolds v. John- son, 9 Humph. (Tenn.) 444, where a cred- itor's claim against an executor was barred by the statute of limitations, but the lega- tees agreed with the executor and the cred- itor that the executor should pay the debt and receive a credit on settlement with the legatee, and the executor was credited with the amount accordingly, it was held that the executor could not set up the bar of the statute in an action by the creditor to re- cover the debt. But in Ball v. Wyeth, 8 Allen (Mass.), 275, an agreement by a creditor to extend the right to redeem land which is mortgaged to him to secure his debt, and not to foreclose the mortgage for a specified time, was held not to have the effect to extend the personal liability of the debtor beyond the time at which it would otherwise cease by the lapse of the statutory period. 5 Holladayi). Littlepage, 2 Munf. (Va.) 816. s Baird v. Eatcliff, 10 Tex. 81. V. McMeans, 23 Tex. 481 ; Bullock v. Campbell, 9 Gill (Md.), 182; Webster v. Kirk, 17 Q. B. 944; Godfrey v. Rice, 59 Me. 308. See, as to notice when notice is neces- sary, Manchester Bank v. Fellows, 28 N. H. 302 i Shed w. Brett, 1 Pick. (Mass.) 401. 2 Angrove v. Tippett, 11 L. T. N. s. 708; Reynolds v. Doyle, 1 M. & G. 753; Burton v. Rutherford, 49 Mo. 72; Huntley V. Sanderson, 1 C. & M. 467; Kiig v. Hannah, 6 Bradw. (111.) 495. 8 Webster u. Kirk, a?i. Levering, 58 Me. 437. The judgment of the circuit court in the present case appears to have been based upon the decision in Merchants' National Bank v. First National Bank, 4 Hughes, 9, which proceeds upon grounds inconsistent with the principles and au- thorities above stated, and cites no case except the very peculiar one of Cowper v. Godmond, 9 Bing. 748 ; s. c. 3 Moore & S. 219 ; in which the right of action to recover back money paid for a grant of an annuity, the memorial of which was defective, was held not to accrue until the grantor elected to avoid it on that ground, the annuity apparently being considered as not absolutely void, but as voidable only at the election of the grantor. See Churchill v. Bertrand, 3 Q. B. N. s. 568 ; s. c. 2 Gale & D. 548. Although some of the opinions of the Court of Appeals of New York, in the cases cited at the bar, contain dicta which, taken by themselves and without regard to the facts before the court, might seem to support the position of the defendant § 140.] BILLS, NOTES, CHECKS, ETC. 381 in error, yet the judgments in those cases, upon full examination, appear to he quite in accord with the views which we have The cases of Thomson v. Bank of British North America, 82 N. Y. 1, and Bank of British North America v. Mer- chants' National Bank, 91 N. Y. 106, were actions by depositors against their respective bankers, and were therefore held not to be barred until six years after demand. In Southwick v. Firsii National Bank, 84 N. Y. 420, the decision was that there was no such mistake as entitled the party paying the money to reclaim it ; and in Sharkey v. Mansfield, 90 N. Y. 227, it was adjudged that money paid by mis- take, but received with fall knowledge of all the facts, might be recovered back without previous demand ; and what was said in either opinion as to the necessity of a demand where both parties act under mistake was obiter dictum. Two other cases in that court were decided together, and on the same day as Bank of British North America i>. Mer- chants' National Bank, above cited. In one of them, the defendants, who had innocently sold to the plaintiffs a forged note as genuine, and, upon being informed of the forgery and requested to pay back the purchase-money, had ex- pressly promised to do so if the plaintiffs should be obliged to pay a third person to whom they had in turn sold the note, were therefore held not to be discharged from their liability to refund by the plain- tiffs having awaited the determination of a suit by that person against themselves, before returning the note to the defend- ants. Frank u. Lanier, 91 N. Y. 112. In the other case, a bank which had paid a check upon a forged indorsement, supposed by both parties to be genuine, was held entitled to recover back the money, with interest from the time of payment, — necessarily implying that the right of action accrued at that time. Com Exchange Bank v. Nassau Bank, 91 N. Y. 74. In' the case at bar, as in the case last cited, the plaintiff's right of action did not depend upon any express promise by the defendant after the discovery of the mistake, or upon any demand by the plain- tiff upon the defendant, or by the de- positor or any other person upon the plaintiff; but it was to recover back the money, as paid without consideration, and had and received by the defendant to the plaintiff's use. That right accrued at the date of the payment, and was barred by the statute of limitations in six years from that date. A person who presents forged paper to a bank and procures the payment of the amount thereof to him, even though he makes no express warranty, yet, in law, he is treated as representing that the paper is genuine, and even though the payment is made to him in ignorance of the forgery, he is liable to an action to recover back the money which in equity and good conscience has never ceased to ba the property of the payer. Under these circumstances there is never, at any stage of the transaction, any consideration for the payment, and the statute of limita- tions begins to run immediately upon the payment. A right of action under such circumstances does not depend upon any express promise of the defendant after the discovery of the mistake, or upon any demand by the plaintiff, but accrues at the date of the payment. In Bank of British N. America v. Merchants', &c. Bank, 91 N. Y. 106, the plaintiff bank in March, 1870, was a de- positor with defendant bank. On the 9th of that month it drew a check on defend- ant for 117,500, which was less than its then deposit, payable to the order of one H. That check was on the same day certi- fied to be good by defendant; at whose re- quest did not appear. On the next day the check with the forged indorsement of H. was presented by some person other than H. to defendant, and paid by it, and the payment charged to plaintiff. On the 17th of said month a pass-book, wherein were the credits to and charges against the plaintiff, was returned by defendant to plaintiff in the usual course of business with the checks paid by defendant. It contained the charge of $17,500, and the check as a voucher was also returned to plaintiff. The deposit account has always continued between the parties, and still exists. Plaintiff had no knowledge that 382 STATUTES OF LIMITATION. [chap. XII. the indorsement of H. had been forged until the 24th of January, 1877, and there- after, on the 26th of May, 1877, it notified defendant thereof, and still later further notified defendant that suit had been brought against plaintiff for the recovery of the amount of the check, and on the 20th of June, 1877, demanded from the defendant repayment of the amount of the check, tendering back the check, and payment having been refused, commenced this action Nov. 7, 1877. It was held that the defence of the statute of limitations was not available to the defendant. The defendant was a debtor to the' plaintiff for all the moneys deposited with it by the plaintiff, and that the debt on account of the moneys so deposited did not become due until demand was actually made, and that a depositor has no cause of action for such debt until after actual demand. It was also held that the certification did not make the check due without demand. A certified check cannot be sued upon with- out demand. The mere drawing of the check was not demand. It only author- ized H., or some person in the behalf of H., to make the demand, and this was never done. The payment of the check by the defendant discharged no part of its in- debtedness to plaintiff, and the latter lost none of its rights by receiving under a mis- take as to the facts, the check as properly paid and charged to its account. The loss as between the defendant and the plaintiff as to a wrongful payment must fall on the defendant. Weisser v. Denuison, 10 N. Y. 68; Howell v. Adams, 68 id. 314; Walsh i>. German Am. Bk., 73 id. 424; Thomp- son V. Bank of Brit. N. Amer., 83 id. 1. § 141.] MISCELLANEOUS CAUSES -OP ACTION. 383 CHAPTER XIII. Miscellaneous Causes of Action. Sec. 141. Contracts, Express and Implied. Sec. 157. 142. Deposits, Certificates of Depos- 158. its, &c. 159. 143. Forged or Invalid Instruments. 160. 144. Implied Warranty. 145. Sureties, Indorsers, &o. 146. Conti-act of Indemnity, Guaran- ties, &c. 161. 147. Money paid for Another. 162. 148. Action under Enabling Acts. 149. Actions against Stockholders of Corporations. 163. 150. Stock Subscriptions. 164. 151. Money payable by Instalments. 165. 152. Over-payments. Money paid by 166. Mistake. 167. 153. Failure of Consideration. 168. 154. Sheriffs, Actions against, for Breach of Duty. 169. 155. Fraudulent Representations in Sales of Property. 170. 156. When Leave of Court to sue is necessaiy. Effect of, on Com- mencement of Limitation. 171. Orders of Court. Property obtained by Fraud. Promise to marry. Contracts void under Statute of Frauds, Actions for Money paid under. Against Heirs, when Tenancy by Curtesy or Dower exists. Actions against Sureties on Ad- ministrator's Bonds, &c. Actions against Guardians, by Wards. Assessments, Taxes, &c. Agreement to pay Incumbrances. General Provisions. For Advances upon Property. Usurious Interest. Between Tenants in Common of Property. When the Law gives a Lien for Property sold. Co-purchaaers, Co-Sureties, &c. Sec. 141. Contracts, Express and Implied. — Upon contracts of all classes, whether written or verbal, the statute begins to run from the time when a right of action accrues.^ Thus, where goods or property 1 Baxter v. Gay, 14 Conn. 119; Tisdale ti. Mitchell, 15 Tex. 480 ; Jones v. Lewis, 11 id. 359 ; Sprague v. Sprague, 30 Vt. 483 ; Eahsuhl v. Lusk, 35 Mo. 316 ; Jus- tice, &c. V. Orr, 12 Ga. 137; Clarke v. Jenkins, 3 Rich. (S. C.) Eq. 318 ; Hayes V. Goodwin, 4 Met. (Ky.) 80 ; Guignard ». Parr, 4 Rich. (S. C.) 184 ; Sims v. Gou- delack, 6 id. 100 ; Payne v. Gardner, 29 N. Y. 146 ; Hikes v. Crawford, 3 Bush (Ky.), 19; Pittsburgh, &c. E. K. Co. ». Pluraraer, 37 Penn. St. 413 ; Taggart v. Western, &c. E. E. Co., 24 Md. 563; Pavies v. Cram, 4 Sanf. (IT. Y.) 855 ; Daniel t>. Whitfield, Busb. (N. C.) L. 294; Berry v. Doremus, 30 N. J. L. 399; Waul V. Kirkman, 25 Miss. 609; Payne v. Slate, 39 Barb. (N. Y.) 634; Turner v. Martin, 4 Eobt. (N. Y. Superior Ct.) 661 ; Peck V. New York, &c. Steamboat Co., 5 Bosw. (N. Y. Superior Ct.) 226 ; Murray v. Cos- ter, 20 Johns. (N. Y.) 576. In Catholic Bishop of Chicago v. Bauer, 62 111. 188, where plans of a church were completed more than five years before suit brought, but the architect furnishing them con- tinued to superintend the work until with- in five years of bringing the suit, when he was discharged, it was held that the statute did not begin to run until the architect was discharged, and that a suit brought within five years of that time was in season to save the debt from the statute. In Clark i>. L. S. & M. S. R'y Co., 94 384 STATUTES OP LIMITATION. [chap. XIII, of any description are sold, and no time is fixed for paj'ment, the law implies a promise to pay when the purchase is made ; and the plaintiff cannot, by showing a custom on his part to give one year's credit, pre- vent the running of the statute from the day of sale.^ Where the terms of a contract are express, and the time of paj-ment is agreed upon, of course the statute begins to run from that time, unless the time has been extended by the agreement of the parties ; and when a contract has been made, and the time of payment has been fixed, and more property is delivered than was to be delivered under the contract, or more or extra work is done, and no contract is made as to the time of payment for the extra goods or extra work, the statute begins to run as soon as the goods are delivered or the extra work is completed. Thus, when a contract was entered into to build a ship at an agreed price, and afterwards the ship was built larger, but without any further N. Y. 217, it was held that the provision of the code exempting from the operation of the statute limiting the time for the commencement of actions, a case where a person was entitled to commence an action when the code took effect, and declaring that in such a case, "the provisions of law applicable thereto immediately before this act takes effect, continue to be so ap- plicable, notwithstanding the repeal there- of," does not refer simply to statutory provisions, but within the meaning of said exception a rule or doctrine established by judicial decision is a "provision of law " equally with one enacted by the legislature. Accordingly held, where the plaintiff was entitled to, and had commenced his action before the code went into effect, that the provision of the code, making the statute of limitations of the place of resi- dence of a non-resident defendant available as a defence in certain cases, did not apply ; but that the case was governed by the rule in force when the coda went into effect, i. e., that the statute of limitations of a foreign State constituted no defence in an action brought here. 1 Brent v. Cook, 12 B. Mon. (Ky.) 267. In Hursh v. North, 40 Penn. St.. 241, evi- dence of a custom of the plaintiff to give a credit of six months was held not admis- sible for the pui-pose of proving that the price was not to be paid when the goods were sold, but on a certain date thereafter, so as to avoid the statute by showing that the bill was not due until within the statutory period. In Roberts v. Ely, 113 N. Y. 128, the plaintiff brought an action, in 1881, to re- cover a specific portion of certain insur- ance money collected by E., the defend- ant's testator, in 1872, of which portion the plaintiff claimed he was the equitable owner. It was held that the alleged cause of action was a liability implied by law, which arose when the money was received by E. ; that it was subject to the six years' statute of limitations then in force, and so was barred. Money in the hands of one person, to which another is equitably entitled, may be recovered by the latter in a common law action for money had and received, subject to the restriction that the mode of trial and the relief which can be given in a legal action is adapted to the exigencies of the case, and is capable of adjustment in such an action, without prejudice to the interests of other parties. No privity of contract is required to sustain such an action, except that which results from the circumstances; and it is immaterial whether defendant's original possession was right- ful or wrongful. The fact that the relation between the parties has a trust character does not, ipso facto, in all cases, exclude the jurisdiction of a court of law. It seems that if an equitable action could have, and had, been brought to enforce the alleged liability, it would still have been subject to the legal limitation of six years. § 141.] MISCELLANKOUS CAUSES OF ACTION. 385 agreement as to the time of payment for the extra labor, it was held that the statute began to run as soon as the work was completed.^ Where a term of credit is agreed upon, of course the statute does not begin to run until the time of credit has expired,^ and in this class of contracts little or no difficulty in determining the time when the statute begins to run exists. The only difflcultj' arises with that class of contracts where the time for pa3'ment is not fixed, but is left to legal inference. In a contract for services, if the work is done under a con- tinuous contract, and no time for payment is fixed, a right of action does not accrue until the work is completed ; * but although the work is continuous, yet if it is done under distinct contracts, a right of action, accrues under each contract, and the statute begins to run from the time when it is completed.* 1 Peck V. New York Steamship Co., 5 Bosw. (N. Liverpool Y.) 226. 2 Tisdale v. Mitchell, 12 Tex. 68 ; Bush V. Bush, 9 Penn. St. 260. 8 Eliot B. Lawton, 7 Allen (Mass.), 274. In Litter v. Smiley, 9 Ind. 116, where in an action for work done for the plaintiflTs intestate no time for payment was specified, and no time of service was agreed on, it was held that the statute did not begin to run as to any of the work until the work was fully completed, al- though it extended through a series of years. But iu Davis v. Gorton, 16 N. Y. 255, where a person entered into the de- fendant's employment at a fixed salary, but for no definite time, and no time for payment was agreed on, it was held to be a general hiring from year to year, the pay for each year's service becoming due at the end tiiereof, so that the statute ■began to run on each year's wages from the end of each year. McLaughlin v. Maund, 55 Ga. 689 ; Puraell v. Fry, 19 Hun (IT. Y.), 595. * Davis V. Gorton, ante. In Decker v. Decker, 108 N. Y. 128, it appeared that D. entered into an agi-ee- ment with the plaintifif, his wife, to pay her a stipulated annuity for her support and maintenance, and gave his bond and a mortgage on certain real estate as security. Subsequently, for the purpose of defraud- ing the plaintiff, D. caused the mortgaged money. J. sold part of the land so pur- chased and received a, mortgage for a portion of the purchase price. This, by the direction of D., he assigned, without consideration, to defendant H., who had. knowledge of the fraud, and also deeded to her the balance of the property. Plain- tiff obtained several judgments against D.. for instalments of annuity not paid, and, after returns of executions issued thereon, unsatisfied, brought this action in the na- ture of a creditor's biU to reach the prop- erty so transferred to H. Held, that a judgment was proper, adjudging plaintiff's; mortgage to be a lien on the premises so conveyed to H., and directing a foreclos- ure sale; also, directing a judgment against. H. for any deficiency not exceeding the- amount of the bond and mortgage so as- signed to her. It was claimed, on appeal, that the rep- resentatives of J., who died before the- commencement of the action, should have been made parties. Held, that if there- was a defect of parties, the objection .should have been taken by demurrer or answer, and, not having been so taken, was waived. The statute of limitations was pleaded as a defence. It was claimed by the defend- ants that the purchase by J. left a resulting trust in favor of the creditors of D. ; that this action was, in substance, one for the enforcement of the trust, and so was barred by the ten years' limitation. Held, unten- property to be sold on execution issued on able ; that no trust resulted, as the pur- a prior judgment and bid off by one J., under an arrangement that the latter should advance the purchase-money and hold tlie property for the benefit of D., who subsequently repaid _ the purchase- voL. I.— 25 chase by J. was on his own credit, and the transaction could only be assailed on the ground of fraud, and could only be barred by the lapse of six years after discovery of the fraud. 386 STATUTES OP LIMITATION. [CHAP. XIII, The statute begins to run upon a claim for the taking of usurious interest from the time when such interest is paid.'' And each paj^ment of usury furnishes a distinct cause of action against which the statute immediately commences to run.^ In Louisiana, it is held that the statute does not run against the debt secured bj' a pledge as long as the creditor has possession of the pledge. The definition of it being treated as a constant recognition of the debt, a remuneration or prescription which prevents the statute from begin- ning to run. 3 Sec. 142. Deposits, Certificates of Deposits, &c. — In England a gen- ' eral deposit in a bank is treated as a loan, and the statute begins to run instanter ; * but in this country it has been held that an action cannot be maintained for such a deposit without an actual demand ; ^ and from these cases it follows that, as a right of action does not accrue until there has been a demand, the statute of limitations does not begin to run until a de- mand or something equivalent thereto has been made.° If a special deposit is made, payable at a specific time, or upon notice of a certain duration, of course the statute does not begin to run until the time has expired or the notice been given and expired. Thus, in a Massachusetts case,'' it was held that where a balance was struck monthly on a savings-bank •book of a depositor the statute began to run from the time the balance was struck. Where mone3- or property is deposited with a bank or in- dividual to be paid or returned upon demand, it is not paj'able or returnable, so that an action will lie therefor, until a demand has first been made therefor, consequently the statute does not begin to run until ■after demand ; ^ so where money is deposited with an individual who is to pay interest entered thereon, with an agreement that it is not to be with- drawn except bj' draft at thirtj' days after sight, the statute does not begin to run, nor does the presumption of payment arise until a draft therefor has been presented and dishonored. Thus, in a New York case,' a person deposited with the defendant, a private individual and not a banker, $4,000 upon the terms stated. The deposit was made by means 1 Eahway National Bank v. Carpenter, payable, and the statute began to run 52 N. J. L. 161. thereon from its date. '■i Albany v. Abbott, 61 N. H. 157; ' Johnson v. Farmers' Bank, 1 Harr. Barker u. Strafford Co. Savings Bank, 61 (Del.) 117 ; Watson v. Phoenix Bank, 8 N. H. 147. Met. (Mass.) 217; Dovfnes v. Phenix Bank, 8 Citizens' Bank v. Hyams, 42 La. An. 6 Hill (S. C), 297. 729. 6 In Buokner v. Patterson, Litt. Sel.Cas. * Pott V. Clegg, 16 M. & W. 321. In (Ky. ) 234, it was held that when money is Wriglit V. Paine, 62 Ala. 340, where money deposited with a person for the use of an- was deposited with an individual under a other, the statute begins to run from the writing by which the depositary acknowl- date of the deposit, edges the receipt of a certain number of ' Union Banks. Knapp, 3 Pick. (Mass.) dollars in gold, " on deposit to bo paid " to 96 ; Sullivan v, Fosdick, 10 Hun (N. Y. ), the depositor "on demand," it was held 173. that, in the absence of any evidence of ex- ' Finkbone's Appeal, 86 Penn. St. 368. trinaic facts to aid its construction, it * Sullivan u. Fosdick, 10Hun(N. Y.), would be treated as a loan rather than a 178. bailment, and therefore became due and § 142.] MISCELLANEOUS CAUSES OE ACTIOK. 387 of two drafts, which were realized the last of Februarj', 1853. The person making the deposit died in Ha^'ti, of which couutrj- he was a resident, in 1856 or 1857, having left the whole of his propertj', includ- ing this money, to one Eosmonde Gaveau, and this will was duly proved in Hayti in 1875, and later in New York in November, 1875, and the plaintiff was appointed administratoi eun testamento annexo. The de- fendant set up, 1st, the statute of limitations in bar of the claim ; and, 2d, presumption of payment. But the court held, upon the authority of a previous case,' that a demand was necessary before the statute was put in motion. " In this case," said Davis, P. J., " A demand was required by the express agreement between the parties, and the previous form of demand was specified by the agreement to be a draft at thirtj- or sixty days' sight. In such a case we see no reason to doubt that the defendant's testator could have protected himself against any action brought by the plaintiflfs testator at any time prior to such demand. In respect to the presumption that such a demand had been made, so that the statute had commenced to run long enough before the beginning of this action to bar the recovery, it may be suggested that it does not appear in the case that any person was authorized to make the demand from the time of the testator's death until the probate of the will before the courts of Haj'ti in 1875. Upon such a state of facts it is verj^ questionable whether the presumption of a demand has any ground to stand upon, not- withstanding the great lapse of time since the deposit of the monej-." Where mone}' is deposited with one man for the use of another, it is held that a cause of action accrues to the person for whose use it was deposited, from the time of deposit, unless a time within which it is to be paid is fixed upon ; ^ but this would seem to depend upon the nature of the contract to be implied from the circumstances of the ease. If the money was left with the third person at the request of the person for whom it was intended, the rule stated above would doubtless be cor- rect ; but, if not, the period from which the statute would run would seem to be, according to the cases, from the time when a demand was made for the monej-, unless the circumstances are such as to raise an implied promise on the part of the depositary to seek the beneficiary and pay him the money at all events.' Where a certificate of deposit is issued, its terms may be decisive of the period when the statute attaches thereto. Thus where a certificate of deposit, in the following terms, was issued, — Certificate op Deposit No. 20,186. Washington County Bank, Union Village, N. Y., April 4, 1863. This certifies that J. K. Sanborn, agent of George Paige, has deposited in this bank fi.ve hundred dollars to the credit of said agent, payable on the return of this certificate, properly indorsed. $500. Edwin Andrews, Cashier. ' Payne v. Gardner, 29 N. Y. 146. ' Hutchings v. Gilman, 9 N. H. " Buckner o. Patterson, Litt. Sel. Gas. 359. (Ky.) 234. 388 STATUTES OF LIMITATION. [CHAP. XIII. it was held that the statute did not begin to run thereon until a demand had been made for the nionej'.^ In this case the certificate was not transferred to the plaintiff until Oct. 20, 1870, more than seven j-ears after its issue. The court held that the statute had not run thereon, because it did not attach to such instruments until a demand had been made therefor. "In the strict meaning of the word, borrowed from the civil law, ' deposit ' is the deliverj- of a thing for custody, to be rede- livered on demand, without compensation," said Laened, P. J. " Such are deposits of securities or valuables in a bank, for safe-keeping. But ordinary' money deposits in bariks are clearly different in this respect : the identical money deposited is not to be returned, — only its equivalent ; and the money deposited becomes the money of the bank. The bank really becomes debtor to the depositor. Still, however, the bank is, in theorj', supposed to have the money on hand, ready to deliver when called for ; and hence it is that, as in the case of a true deposit, an actual de- mand must be made before the bank can be required to pay. This is the plain and undoubted understanding of all parties. The depositor puts his money in the bank for better security, instead of keeping it himself. And when he actually demands it, the bank is to pay ; not be- fore. The bank may also give a certificate of deposit. When they do this, and when, as in this case, they make the certificate payable on its retui-n, properly indorsed, they have then added to their original under- taking as a depositary an agreement that they will pay the deposit to the holder of that certificate, properly indorsed. The}' are, therefore, under a liability as depositary', to be readj- to redeliver the money whenever demanded ; and further, to deliver it to any holder of that certificate, properly indorsed. It follows, therefore, that they are liable to a bofia fide holder of the certificate, notwithstanding a paj'ment to the original depositor. It was urged by the defendants that the certifi- cate was payable forthwith ; that, after the lapse of an unreasonable time (in this case seven years), it was presumed to be dishonored, »nd therefore that the assignee took it subject to all equities. We think not. The very nature of the instrument and the ordinary modes of business show that a certificate of deposit, like a deposit credited in a pass-book, is intended to represent moneys actually left with the bank 1 National Bank of Fort Edward v. deposited with us, and is distinct from Washington Co. Bank, 5 Hun (N. Y.), othev transactions with said Ashton." In 605. an action upon the same wherein the stat- in Smiley v. Fry, 100 K. Y. 262, it ute of limitations was set up as a defence, was held that a firm, of which defendant held, that it was in the nature of a cer- is the surviving partner, in May, 1864, ex- tificate of deposit, not « promissory note ; ecuted and delivered to the plaintiff's as- that no cause of action arose thereon until signor, upon receipt of the sum specified a demand was made for the sum deposited; therein, an instrument, the body of which and, as the jurj' found from evidence jus- is as follows: " Due S. K. Ashton, M. D., tifying the finding that no demand was Trustee, |4,000, returnahle on demand, made until 1880, that the action was not It is understoocl that this sum is specially barred by the statute. § 142.] MISCELLANEOUS CAUSES OF ACTION. 389 for safe-keeping, which are to be retained until the depositor actually demands them. Such a certificate is not dishonored until presented." ^ But, where money is deposited in a bank from time to time, subject to check at sight, the relation between the parties is not that of trustee and cestui que trust, but of debtor and creditor. When received, in the absence of any express stipulation to the contrarj-, the money at once becomes the property of the bank, and the bank becomes the debtor of the depositor, under an implied contract to discharge the indebtedness by honoring the checks drawn thereon bj- the depositor,'' and also to re- pay on the demand of the depositor any balance which may be due at the time of demand.' But this rule does not apply where the thing deposited is a commodity, such as " Confederate notes," and the agreement was that the collection should be made in like notes ; * nor does it apply to lands or other securities or packages of money deposited with it under a special contract that the same shall be returned.^ But, while 1 Hamell v. Adams, 68 N. Y. 314 ; Payne v. Gardner, 29 N. Y. 167 ; Farm- ers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 14 N. Y. 627. Such also is the rule in Indiana. Brown v. McElroy, 52 Ind. 404. But in Georgia, in Meadow v. Dollar Savings Bank, 56 Ga. 605, it was held that a certificate of deposit payable to the order of the depositor, but containing no other indication of the time of payment than was to be derived from the words, " with interest at the rate of seven per cent on call and ten per cent " per an- num is payable on demand, and therefore due immediately. So also in Illinois. Brahm v. Adkins, 77 lU. 263; Adams v. Orange Co. Bank, 17 Wend. {N. Y.) 514; Girard Bank t'. Bank of Penn Township, 39 Penn. St. 92; Brummagin v. Tallant, 29 Cal. 503. And a certificate of deposit payable " on return of this certificate " is payable on demand. Tripp v. Curtenius, 36 Mich. 494. The demand need not be made by the depositor in person. Bank of Kentucky v. Wister, 2 Pet. (U. S.) 318. A demand is not necessary after the bank has rendered an account claiming it as paid. Bank of Missouri v. Benoist, 10 Mo. 519. And consequently the stat- ute would run from the time when by its acts the bank had rendered a demand unnecessary (probably), or when it has given the depositor notice that his claim will not be paid. Farmers' Bank v. Plant- ers' Bank, 10 G. & J. (Md.) 422. 2 Bank of the Eepublic v. Mills, 10 Wall. (U. S.) 152 ; Buchannan & Co. v. Woodman, 1 Hun (N. Y.), 639; Dawson v. Real Estate Bank, 5 Ark. 283 ; Foster v. Essex Bank, 17 Mass. 479; Coffin v. Ander- son, 4 Blackf. (Ind.) 395; Bank of Ken- tucky V. Wister, 2 Pet. (U. S. ) 318; Albany Commercial Bank v. Hughes, 17 Wend. (N. Y.) 94; Keene v. Collier, 1 Met. (Ky.) 415; Corbettw. Bank of Smyrna, 2 Harr. (Del.) 235; Matter of Franklin Bank, 1 Paige (N. Y.) Ch. 249; Graves v. Dudley, 20 N. Y. 74 ; Marsh v. Oneida Central Bank, 34 Barb. (K Y.) 298; Lund u. Seaman's Savings Bank, 37 id. 129; Wray V. Tuskege Ins. Co., 34 Ala. 58; Bank of Northern Liberties v. Jones, 42 Penn. St. 536; Downes v. Phenix Bank, 6 Hill (N. Y. ), 297 ; Chapman v. White, 6 N. Y. 412; Ellis v. Linck, 3 Ohio St. 66. It is held that a bank, having without objec- tion received the bills of other banks, without diminution or discount, notwith- standing that at the time of the deposit, or subsequently thereto, they were worth less than par, is liable to pay the par value therefor. Marine Bank of Chicago V. Chandler, 27 111. 525. The Bank of Kentucky ». Wister, ante, is a strong case upon this point. 8 Boyden v. Bank of Cape Fear, 65 N. C. 13. And this rule is applied be- tween banks where one becomes a deposi- tary for another. Phelan v. Iron Mountain Bank, 16 Bankr. Eeg. (U. S.) 308. * Planters' Bank v. Union Bank, 16 Wall. (U. S.) 484; Ruffin v. Commission- ers, &c., 69 N. C. 498; Litty v. Same, 69 id. 300. 6 Hall V. Rawallie, 8 Kan. 137; Smith V. First National Bank, 99 Mass. 605 ; 390 STATUTES OP LIMITATION. [chap. XIII. the bank becomes a debtor to the extent of the deposit, it is not liable to pay interest thereon in the absence of anj' contract to that effect.' Where money is paid into court, and is placed in the custodj' of the clerk or other officer designated by law to have the custody of it, the statute does not begin to run against the party mutually entitled there- to until a demand has been made for the monej'.^ And the same rule has been applied where money has been paid to a commissioner in equity.' Lancaster Co. National Bank v. Smith, 62 was presented to defendant for payment and refused. On March 8th, B. was mar- ried to E. The other check was presented ' and payment refused August 28, 1871. lu an action to recover the amount so deposited, held, that as the money be- longed to B., when deposited, although the deposit was in plaintifl's name, it still remained the property of B. and the pay- ment to the committee was a legal pay- ment which discharged defendant ; that, assuming there was an equitable right in E. to the money, arising out of the ante- nuptial contract, such equity could not be invoked against the bank, it having no notice of the same when it made payment. If any such equitable claim existed, it could only be enforced in an action against the committee. The committee so appointed brought an action against E. to set aside the marriage on the ground of the alleged lunacy of B. The trial resulted in a finding that, at the time of the marriage, B. was of sound mind and capable of entering into a mar- riage contract, and judgment was entered' in favor of E. Held, that this did not affect the validity of the appointment of the committee or of the payment by de- fendant. This action was brought in 1878. It was held that the right of action, if any existed, was barred by the statute of limitations ; and this, although the defendant had, within six years, paid checks drawn by the plaintilT for the balance due him for moneys deposited on his own account, aside from the moneys in question. While (i check drawn by a depositor against a general bank account does not operate as an assignment of so much of the account, it authorizes the payee, or one to whom he has indorsed and deliv- ered it, to make a demand, and a refusal of the bank to pay on presentation gives the drawer a right of action, in case he has funds in bank to meet the check and the refusal was without his autlibrity. Peun. St. 47 ; Maury o. Coyle, 34 Md. 235. 1 Parkersburgh National Bank v. Als, 5 W. Va. 50. ^ In Lynch u. Jennings, 44 Ind. 276, an action was brought for the specific per- formance of a contract to convey certain lands. . In his complaint A. alleged a ten- der and refusal of the purchase-money, and brought it into court, and it remained in the hands of the clerk. After years of litigation a final decree was entered in A.'s favor. The executors of B. then demanded the money of the administrators of the clerk, \vho had died, and on their refusal to pay brought an action for its recovery. The defendants set up the statute of limi- tations. The court held that the statute did not begin to run in such cases until a demand upon the defendants for the money. 8 Heriot v. McCauley, Riley (S. C.) Ch. 19. In Viets v. Union Nat. Bank of Troy, 101 N. Y. 563, reversing 31 Hun, 484, the plaintiff at the request of B., deposited cei'tain moneys belonging to the latter, with defendant ; he made the deposit, however, in his own name, to the credit of a deposit account he then had with the defendant, and gave to B. two checks for the amount, which the latter on Feb. 22, 1869, indorsed and deliyered to E., as part consideration for her promise to marry him. On the next day, proceedings de lunatico inquircndo were instituted against B. , and an inquisition therein held March 10th, adjudging him to be of unsound mind and that he had been, for a period of six months. Pending the proceeding, an order was made enjoining the defen- dant from paying over the moneys to any one. On March 31st, an order was made confirming the inquisition and di- recting defendant to pay the said moneys to the committee hereby appointed, and April 15th defendant complied with the order. On March 6th, one of the checks § 143.] MISCELLANEOUS CAUSES OP ACTION. 391 Sec. 142 a. Money received by one for use of another. — Where money is received by one to and for the use of another, under such circumstances that it is the duty of the former to pay it over, an ac- tion for money had and received, maj' be brought to recover it without a demand, and the statute of limitations begins to run from the day of the receipt of the money. Thus, in a New York case,^ T., the plaintiflf's intestate, deeded certain lands to the defendant, and as- signed to him a mortgage as security for indebtedness, with the un- derstanding that the latter might sell the lands, collect the mortgage, and reimburse himself, by agreeing to re-convey on payment of the debt and expenses and all subsequent loans. During the life of T., who died in 1871, defendant sold all the lands and received the proceeds, except one item, which was received in 1872. In an action brought in 1881, for an accounting and payment over of any surplus, held, that the proceeds of the lands which came to defendant's hands after he had been fully reimbursed, were received by him to and for the use of T. ; it was his duty at once to pay them over, and upon his failure to do so, he was liable without demand ; that, therefore, the six years' statute of limitations applied, and the action was barred ; that this result was not affected by the fact that an accounting was required, as whatever might be the form of the action the legal rule of limitations applied ; also, as there was no unlawful interference by him with the estate of the intes- tate after his death, that defendant could not be held as executor de son tort. A mortgagee who has received moneys, the proceeds of sale of the mortgaged property, is not trustee of an express trust ; if in anj- sense a trustee, it is simply an implied trust, and, as to the liability growing out of such a trust, the ordinary rules of limitation apply. Sec. 143. Money misappropriated. — When money is paid to a person for a special purpose, and is by him applied to another, the statute begins to run from the date of such misappropriation. Thus, The presumption is that a third person tations begins to run as against the iustal- presenting a check payable to the order of ment so made due and payable, and indorsed by the payee has authority The provision of the code, excepting to present it, at least so far as the drawer from the liniitations, contained therein a is concerned. case where a person who, at the time said The implied contract between a bank code took effect, was entitled to commence and its depositors is that it will pay the an action or proceeding, and who com- deposits when and in such sums as are de- menced the same within two years there- manded, the depositor having the election after, and making the provision of law to make the whole payable at one time by previously in force, although then re- demanding the whole, or in instalments pealed, stiU applicable thereto, did not by demanding portions ; and whenever operate to extend the time for the bar of demand is made by presentation of a gen- the statute of limitations to take eflFect ; it nine check in the hands of a person en- merely left actions or proceedings brought titled to receive the amount thereof, for a within two years to be governed by the portion of the amount on deposit, and law in force when the code went into effect, payment is refused, a cause of action im- ' MiUs v. Mills, 115 N. Y. 80, reversing mediately arises, and the statute of limi- 48 Hun, 97. 392 STATUTES OF LIMITATION. [CHAP. XIII. in a New York case,* a county treasurer instead of applying taxes assessed on the property of a railroad corporation in a town, to the payment or redemption of bonds of the town, issued in aid of the construction of the road of such corporation, as required by the act of 1869, as amended in 1871, applied them in payment of county and State taxes, with, and as part of, other moneys raised bj' the town for those purposes, and it was held that an action, as for money had and received, was maintainable on behalf of the town against the county to recover the money so misappropriated ; that the liabilitj' in- cluded as well the portion of the funds applied in payment of the State taxes as that applied for other county purposes ; also, that the action was properly brought by the supervisor of the town in his name as its representative. The cause of action in such case arises when the misappropriation is made ; the statute of limitations then begins to run against it, and an action brought more than six years thereafter is barred. While every duty imposed upon a public officer is in the nature of a trust, persons injured by a violation of the duty for which thej' may maintain an action of law, must pursue that remedy within the period of limitation of legal actions ; and the fact that the supervisors of the town for the period of fourteen years were apprised from year to year, while sitting as members of the board of supervisors of the countj-, of the misappropriation, and made no objection thereto, did not estop the town from claiming a repayment of the money. A town cannot be estopped by the neglect of its supervisors to assert a claim against the county, the grounds of which are equally known to all the members of the board of supervisors. A county trea- surer in the payment of State taxes to the State comptroller acts as agent for the county, and pays on its behalf.'' Sec. 143 a. Forged or Invalid Instruments. — Where a bank paj'S a draft or check drawn upon it, payable to the order of A., to an indofsee thereof, and it subsequently transpires that the indorsement thereon was forged, the statute of limitations docs not run against its claim for indemnity against the indorsee until it has been notified by the drawer of his intention to insist on the defect of title and cancel the credit given it on the draft. Thus, in a case of the United States Court,' it appeared that the United States Treasurer in 1867 made a draft on the First National Bank of B. payable to the order of O. The indorse- ment of O. was forged, and the check was sent by a third party to the M. bank for collection. The M. bank indorsed it and sent it to the drawee, by which it was paid and sent to the United States Treasury, where it was credited to the drawee. In 1877 the United States sued 1 StroTigh V. Supervisors, 119 N. Y. portion of the fund applied in payment of 212 ; 50 Hun, 54. State taxes. ^ Bridges v. Board of Supervisors, 92 ^ Merchants' National Bank of Balti- N. Y. 570, distinguished, so far as it re- more v. First National Bank of Baltimore, lates to the liability of the county for the 8 Fed. Eepoi-ter. § 144] MISCELLANEOUS CAUSES OP ACTION. 393 the drawee for the amount of the draft, upon the ground that the indorsement was forged ; of which suit the M. bank was notified, and employed counsel in defending the suit. Judgment was rendered against the drawee. In an action by the drawee commenced against the M. bank, after it had paid the judgment to the United States, the M. bank set up the statute of limitations. The court held that the action was not barred, as the statute did not begin to run at the time of the payment of the draft, nor until the United States elected to insist on the defect of title and cancel the credit given to the drawee on the draft. The court relied upon the authority of an English case ^ quite similar in principle. In that case the question was, whether a plea of the statute of limitations was a bar to an action for monej' had and received to recover the consideration money of a void annuity, when the annuity was granted more than six years before the action was brought, but was treated bj' the grantor as an existing annuity within that time. " That question," said the court, " depends upon another: At what time did the cause of action arise ? The cause of action com- prises two steps : the first is the original advance of the money by the grantee ; the second is the grantor's election to avail himself of the defect in the memorial of the annuity. The cause of action was not complete until the last step was taken." ^ Sec. 144. Money had and received. — Where an action is brought for money had and received by the defendant to his use, the stat- ute only begins to run from the time when it was received by him. Thus, in a New York case,' when a municipal corporation, acting through its officers^ in the execution of a power conferred upon it to collect a tax assessed upon a particular citizen, enforces its collection out of the property of another, in nowise liable therefor, and appropriates the proceeds of collection to its own use, with full knowledge of the illegality of the proceedings, it becomes liable to the owner for the spoliation of his property. In an action to re- cover of the defendant the money received into its ti'easury through proceedings taken to collect a tax assessed upon the stockholders of a bank, doing business within its corporate limits, it appeared that the property levied upon and sold by the defendant was not the property- of the stockholders, but of the bank. By the defendant's charter, its maj'or is its executive head and clothed with the duty and power of supervision of it and its officers in all departments. Its treasurer and tax receiver are intrusted with the duty and power of collecting taxes and keeping the moneys for the defendant. The collector was directed, when he received the warrant from the treasurer and tax receiver, to go to the bank and levy upon everything in the bank, to make the levy and 1 Cowper V. Godmoiid, 9 Bing. 788. warrant did not accrue until the certificate 2 See Ripley v. 'Witlieej 27 Tex. 14, had been presented to the Court of Claims where it was held that an action for dam- and rejected by it. ages arising from the sale of a forged laud- '■> Teall v. Syracuse, 120 N. Y. 187. 894 STATUTES OF LIMITATION. [CHAP. XIII. sale of its property, and the mayor was so informed, and the treasurer received the tax from the collector, knowing that it was obtained by such levy and sale. It was held that the plaintiff was entitled to recover ; that the proceedings of the defendant's officers in collecting the tax were unlawful ; and that knowledge thereof was justly imputable to the defendant ; and that the defendant's knowledge of the illegal levy and sale relieved the plaintiff from demanding the money before bringing this action ; and that the action, being for money had and received, the statute of limitation did not begin to run until the defendant had re- ceived the money. Sec. 144 a. Implied Warranty. — Where property is sold under such circumstances that the law will imply a warranty, the statute be- gins to run from the date of the warranty. Thus, where the payee of a negotiable note indorses the same, the law raises an implied warranty that the note was given for a valuable consideration, and upon this warranty an action for its breach accrues and the statute begins to run at once.i In the ease of a contract for the mutual exchange of lands which contains nothing from which it can be inferred that one convey- ance was to precede the other, the law implies that the conveyances are to be made concurrently-, and that the mutual covenants of the parties are dependent, and that the statute does not begin to run thereon against the vendor until he has performed by giving a deed, nor against the purchaser until he has made a tender of the price. ^ Where a part}' transfers a note, knowing it to be affected by usury, to one who is ignorant of the fact, he instantly becomes liable to the purchaser for the deceit ; but the statute only begins to run from the time the fraud was discovered.' Upon an implied warranty of title to chattels sold, it has been held that the statute does not begin to run until the vendee has been disturbed in his title.* Sec. 145. Sureties, Indorsers, &o. — Where a surety is compelled to pay a debt, the statute begins to run against his claim from the day pf such payment, and not from the date of the original obligation,^ and this 1 Blithen w. Lovering, 58 Me. 437. ter, 12 Ired. (N. C.) L. 242 ; Hale v. An- 2 Brennan v. Ford, 46 Cal. 7. drews, 6 Cai. (N. Y. ) 225 ; Garrett v. « Persons v. Jones, 12 Ga. 371. Garrett, 27 Ala. 687 ; Presalar v. Stalls- * Gross V. Kierski, 41 Cal. 111. worth, 37 id. 402 ; Walker v. Lathrop, 6 5 Hammond v. Myers, 30 Tex. 375 ; Clarke (Iowa), 516 ; Bennett v. Cook, 45 Burton V. Rutherford, 49 Mo. 255 ; Reeves N. Y. 268 ; Scott v. Nichols, 27 Miss. 94. V. PuUiam, 7 Bax. (Tenn.) 119 ; Thayer The law implies a promise on the part of V. Daniels, 110 Mass. 345 ; Bamsback v. the principal to reimburse the surety and Reiner, 8 Minn. 59 ; Walker v. Lathrop, the action is upon this implied promise. 6 Iowa, 516 ; Thompson v. Stevens, 2 N. & Ward v. Henry, 5 Conn. 596 ; Powell v. M. (S. C. ) 493 ; Scott v. Nichols, 27 Miss. Smith, 8 Johns. (N. Y.) 249 ; Hassinger v. 94. In Wesley Church w. Moore, 10 Penn. Solms, 5 S. & R. (Penn..) 8; Gibbs v. St. 278, it was held that where the prop- Bryant, 1 Pick. (Mass.) 118; Bunce «. erty of a surety was sold on an execution Bunce, Kirby (Conn. ), 137 ; Hulett v. to iiay the debt, the statute began to run LouUard, 26 Vt. 295 ; Smith v. Hayward, from the date of the sale. Ponder v. Car- 5 Me. 604 ; Loi;sdale ?;. Cox, 7 T. B. Mon. § 145.] MISCELLANEOUS CAUSES OF ACTION. 395 is also the rule as to contribution against a co-surety.' No action, (Ky.) 405; Appleton ». Basoom, 3 Met. (Mass.) 169 ; Holmes ». Weed, 19 Barb. (N. Y. ) 128. It is not necessary that he should pay in money ; it is sufficient if he pays in land or personal property. Bonny V. Seely, 2 Wend. (N. Y. ) 481 ; Randall v. Rich, 11 Mass. 498 ; Ainslee v. Wilson, 7 Cai. (N. Y.) 662. But the implied prom- ise is only to indemnify the surety ; conse- quently it secures a discharge of the debt for less than its amount. He can recover no more than he paid ; and, if he paid the debt in depreciated currency at par, he can only recover the amount which it was worth at the time of payment. Owinga v. Owings, 3 J. J. Mar. (Ky. ) 590 ; Hall v. CresweU, 12 G. & J. (Md.) 36 ; Jordan v. Adams, 7 Ark. 348 ; Crozin v. Adams, 4 •J. J. Mar. (Ky.) 514. So he may sue at once if he has taken np the original note, and given his own in lieu of it, which has been accepted in payment. Downer v. Baxter, 30 Vt. 467 ; Elwood v. Deifendorff, 5 Barb. (N. Y.) 398. But in Indiana it is held that he can maintain no action until he has actually paid a note given in lieu of the original note, Pitzer v. Har- mon, 8 Blackf. (Ind.) 112 ; Romine v. Romine, 59 Ind. 346 ; even though it was secured by mortgage, Bennett v. Buchan- an, 3 Ind. 47. A demand is not necessary. The statute attaches at once upon pay- ment. Odin V. Greenleaf, 3 N. H. 270 ; Sikes V. Quick, 7 Jones (N. C.) L. 19. In a California case. Stone v. Hammell, 832 Cal. 547, McFarland, J., in a well con- sidered opinion, says : " The general rule is, undoubtedly, that a surety can recover of the principal only the amount or value which the surety has actually paid. If he has paid in depreciated bank notes taken at par, he can recover only the actual value of the bank notes so paid and received. If he has paid in property, he can recover only the value of the property. If he has compromised, he can recover only what the compromise cost him. The rule is that he shall not be allowed to " speculate out of the principal." Brandt, Sur. Sec. 182, and cases there cited ; Estate of Hill, 67 Cal. 243. There is authority, however, and per- hapsi a preponderance of authority, to the point, that if a surety, by giving his ne- gotiable promissory note, satisfies the claim of the creditor, and extinguishes the debt of the principal to the creditor, he may recover from the principal, the amount of the debt without showing that he has paid his promissory note. But the authorities are not uniform upon the subject. In Indiana and North Carolina, and some other States, it is held that the surety cannot recover of the prin- cipal until he has paid the money, and that the giving of a note is not sufficient. Brisendine ». Martin, 1 Ired. L. 286 ; Now- land V. Martin, id. 307 ; Romine, 59 Ind. 351 , and cases there cited. Many of the cases hold that, if the surety discharges the debt by a negoti- able note, he cannot maintain an action against the principal, while, if he does so by means of a bond, or any non-negotiable instrument, he cannot, upon the theory that a negotiable note is analogous to money, — a distinction which is founded upon no apparent good reason. Bulware V. Robinson, 8 Tex. 327, 58 Am. Dec. 117 ; Peters o. Barnhill, 1 Hill, L. 327. 1 Singleton v. Townsend, 45 Mo. 379 ; Wood a. Leland, 1 Met. (Mass.) 387; Peters v. Barnhill, 1 Hill (S. C), 234; Moxey V. Carter, 10 Yerg. (Tenn.) 521 ; Lowndes f. Pickney, 1 Rich. (S. C.) Eq. 155 ; Sherwood v. Dunbar, 6 Cal. 53 ; Knotts V. Butler, 10 Rich. (S. C.) Eq. 143. An action for contribution arises at once upon the payment of the whole debt by one surety against his co-sureties for the proportion of the debt each should pay. Whitman u. Gaddy, 7 B. Mon. (Ky.) 591 ; Paulin V. Kaighn, 29 N. J. L. 480 ; La- beaume v. Sweeney, 17 Mo. 153 ; Samuel V. Zaohary, 4 Ired. (N. C. ) L. 377 : Stall- worth ij. Pressler, 34 Ala. 505 ; Chaffee v. Jones, 19 Pick. (Mass.) 260; Lee «. For- man, 8 Met. (Ky.) 114 ; Pinkeston v. Taliaferro, 9 Ala. 547 ; McDoual v. Ma- gruder, 3 Pet. (U. S.) 470 ; Fletcher v. Jackson, 23 Vt. 581 ; Foster v. Johnson, 5 id. 64 ; Stout ». Vanse, I Rob. (Va.) 169 ; Cage V. Foster, 5 Yerg. (Tenn.) 261. And he is not first bound to pursue the prin- cipal. Caldwell v. Roberts, 1 Dana (Ky. ), 355. 396 STATUTES OP LIMITATION. [chap. XIII. however, can be maintained until the surety has actually paid the debt. The fact that a judgment has been rendered against .him, and that he has been committed to jail upon an execution thereon, does not entitle The rule is founded on the reason that if the surety, by giving his own obligation, discharges the original debt of the princi- pal, the latter is as much benefited as if he had discharged it by actually paying the money. Its weakness lies in the pos- sibility of the surety recovering the whole amount of the principal, and never paying his own note, thus violating the cardinal rule that the surety shall not speculate out of the principal. But, if we assume the J-ule to be as first above stated, it is not so clearly commendable as to deserve pushing further than adjudicated cases have already carried it ; and in all cases to which our attention has been called the rule has been enforced against the principal in favor only of the surety who has extinguished the debt to the original creditor. We have seen no case in which the rule has been applied to a surety who had not satis- fied the original debt, but had only given his note to another surety, who had satis- fied it. Moreover the reason of the rule, if it be held to be the rule, is that the principal is benefited to the extent of the original debt or liability which has been extinguished by the new obligation of the surety ; and the reason ceases when there is no such benefit. Now, in the case at bar, defendant was in no manner benefited by the notes given by plaintiff to Newell, nor was any debt or liability of defendant thereby extinguished, because, at the time the notes were given, there was no legal liability from the defendant to New- ell, for the reason that any cause of action which the latter might have had against the defendant for moneys which he had paid to Byron Stevens had long been barred by the statute of limitations. The last payment made by Newell on the note to Stevens, as averred and found, was on Jan. 10, 1881 ; and, as his cause of action for the payments which he had made was not " founded on a written instrument," it was barred in two years, — that is on Jan. 10, 18S3. Chipman v. Morrill, 20 Cal. 136. But plaintiff did not give his notes to Newell until March 1, 1884. At that time defendant was under no legal obliga- tion to any one which plaintiff could dis- charge by giving said notes. The original note given to Stevens had itself been long since outlawed. Therefore, by giving said notes, plaintifi' acquired no cause of action against the defendant herein. We think, also, that the cause of action averred in the complaint would have been barred by the statute of limitations, which was pleaded by defendant, even though plaintiff, on March 1, 1884, had actually paid Newell the |1,000 in money. Plain- tiff seeks to avoid the running of the stat- ute through the fact that, within a month after the original note to Stevens matured, he left the State, and resided out of the State for several years. His contention is tltat, as Newell's cause of action against him for contribution would not be barred while he remained out of the State, there- fore his cause of action which he had against defendant, or which he proposed at some future time to have, by paying his contributive share to Newell, would not be barred during his . absence from the State, though such absence should be for 50 years. He contends that by returning at any time, and subjecting himself to Newell's claim, and paying it, he could recover his part of it against defendant, al- though in the hands of Newell it had been outlawed for a quarter of a century. We do not think that the law of limitation ^of actions contemplates any such an anomaly. When a man leaves the State, the statute of limitations does not run during his ab- sence as to any cause of action against him, but his absence does not prevent the statute from running as to any cause of action in his favor. At any time within two years after Newell had paid the origi- nal note, plaintiff could have paid hia contributive share to Newell, and main- tained an action for it against defendant. But he could not wait until the whole of Newell's cause of action against defendant was barred, and then revive one half of the claim by coming back years afterwards, and making a real or pretended payment of it to Newell. The whole claim was, as to defendant, dead, and the breath of life could not be blown into one-half of it by any such legal hocus-pocus. § 145.] MISCEILLANEOTJS CAUSES OP ACTION. 397 him to an action against the principal for money paid, &c.* Where money is paid by one person for another, and no time is fixed for pay- ment, the statute attaches from the date of its payment.^ The statute begins to run against the right of sureties to be subrogated to the paj-ee's right to securities, &c., from the time of payment of the debt by them.' So strict is this rule and so rigidly is it adhered to that, even when a surety procures an extension of time from the holder, and gives collateral security, and ultimately pays the debt, it is held that the statute does not begin to run against him until he has actually paid the debt.* The rule may be said to be that so long as any liability on the maker's part upon the original debt remains the surety has no right of action against him, and consequently the statute does not begin to run against him ; but, although the surety may not have paid the debt in money, yet if he has in anj- manner assumed the debt, so that the maker's liability upon it is at an end, from that time the statute begins to run against the surety. ° If the note or obligation is paj-able by instalments, the statute begins to run against the surety from the time when each instalment was paid by him.° But if the note is not so pay- able, and the surety in fact pays the note by instalments, the statute does not begin to run from the date of each paj'ment, but from the date of the last payment made by him, in liquidation of the note.' When two persons execute to each other written instruments in the form of deeds, which are defective as conveyances for the want of attestation or acknowledgment, each instrument being the consideration of the other, and possession is given and taken by each, the statute at once commences to run, and, after the lapse of the statutory period, per- fect a title which will maintain or defeat an action of ejectment.' Where a mortgage is given by the maker of a note to a person who becomes surety thereon, conditioned that if the maker pays the note and saves the surety harmless from all demands upon it the conveyance should be void, the statute does not begin to run against the mortgagee until he has actually paid the note or some part of it, and the note is discharged.* The same rule prevails as to indorsers. The statute ' Rodman v. Hedden, 10 Wend. (N. Y.) sum of money on the ground of fraud, in 500. a case," formerly " cognizable by the Court 2 Bowman r. "Wright, 7 Bush (Ky.), of Chancery," does not apply to an aciion 375. by the owner of the fee to remove a cloud ' Bennett v. Cobb, 45 N. Y. 268. upon title to land, by the cancellation of * Norton v. Hall, 41 Vt. 471. a mortgage thereon, to which the owner has 5 Hitt V. Shorer, 34 111. 9. a good defence. « Bullock V. Campbell, 9 G. & J. (Md.) The right to bring such an action is 182. never barred by the statute of limitations. '• Bamsback v. Eeiner, 8 Minn. 59. In an action brought to procure the ' Hall V. Caperton, 87 Ala. 285. cancellation and discharge of a mortgage, 3 M'Lean v. Ragsdale, 31 Miss. 701. on the ground that it had been procured In Schooner v. Lissauer, 107 N. Y. Ill, by duress, the trial court found that fheex- It was held that the provision of the code, ecution of the mortgage was procured by applying a six years' limitation to actions defendants by threats and menaces, to the "to procure a judgment other than for a effect that unless the mortgagor gave it, 398 STATUTES OF LIMITATION. [CHAP. XIII. begins to run against tiiem from the time when they actually paid the debt, and not from the time when they become liable to pay it.^ But, unless the surety' or indorser pays the note within the time limited by statute, he cannot by a payment made by him afterwards make the maker liable to him therefor, especially in those States where by statute payment or acknowledgment by one co-maker, &c., does not take the debt out of the statute as to the others. ° Where one sued as indorser sets up in defence that the transfer was made to the plaintiff to deprive him of the defence of want of consideration, the indorser's cause of action against the last indorser arises from the date of judgment.^ Tf a surety or indorser pays a note before it becomes due, his right of action does not accrue until the note by its terms becomes due ; * as a surety cannot change the legal relations of the maker to the note by any action of his before it becomes payable, nor by forestalling its payment can he acquire any rights against the maker which the holder of the note did not possess. The rule that a right of action accrues to the surety from the time he pays the money, and not from the time when the original debt becomes payable, is subject to the exception, that he must have paid the original debt before the statute had run thereon ; as otherwise, especially in those States whereby statute payment by one joint contractor or prom- isor does not remove the statutory bar as to the other, a recovery could not be had by him if the original debt was then barred as to the principal debtor.^ When the principal debtor, by reason of the run- ning of the statute, has been released from any legal liability to pay the debt, a surety who has been compelled to pay it, because, by reason of some statutory exception, the statute has not run as to him, cannot recover of the principal debtor. ° Instances may arise where the surety has no redress ; as, where he becomes surety upon a note for an infant, they wonld cause her son to he sent to indorser pays a note before the staftite state-prison for larueny and embezzlement, runs upon it, but does not bring suit until for which he was under arrest and indict- after the statute has run on the note, he ment on their complaint, they stating if cannot recover of the maker ; because he their terms were complied with they would acquires no greater rights than the holder release the prisoner, if in their power, but of the note possessed, if not complied with he would be sent to " Price v. Emerson, 16 La. An, 95. state-prison ; that she executed the mort- * Tillotson v. Eose,ll Met. (Mass.) 299. gage while under fear, terror, coercion, and ' The law will not raise -. promise on duress created by the threats, and that the the part of the principal to reimburse the prisoner was immediately thereafter dis- surety where the surety was under no charged on his own recognizance. Held, legal obligation to pay. Kimble v. Cum- that the finding were sufficient to sustain mins, 8 Met. (Ky.) 327. This rule was a judgment for the relief sought. adopted in Cooke v. Hoffman, 5 Lea Solinger v. Earle, 82 N. Y. 898 j and (Tenn.), 105, and a surety who paid the Haynes v. Rudd, 102 N. Y. 372, held not debt after it was barred as to the sureties to be in conflict. was held not entitled to recover of a co- 1 Pope V. Bowman, 27 Miss. 194. surety. See also Campbell v. Brown, 2 In Williams v. Durst, 2,5 Tex. 867, it 86 N. C. 376. was held that where an accommodation • Stone v, Hammett, 83 Cal. .547. § 145.] MISCELLANEOTTS CAUSES OP ACTION. 399 not given for necessaries. In such a case, if the infant escapes upon a plea of infancy, and judgment is rendered against the surety, he has no right of redress from the infant, but stands to the note and judgment in the relation of principal.^ But where a note is given by an infant for necessaries, with a surety, and the surety paj's the debt, he has an immediate right of action against the infant thereon, and the statute runs from that time." Where there are two or more sureties, and each paj-s a moiety of the debt, each has a separate and distinct cause of action against him therefor ; consequently, in such a case, the statute begins to run against the claim of each from the time when each paid his share." The remedy of a suretj' is the same whether he was surety upon a simple contract or a specialty debt.* His remedy is by indebi- tatus assumpsit for money, and not for money had and received.^ At the common law, a payment made by the principal debtor upon a note before tlie bar of the statute has become complete, keeps the debt alive both as to himself and the surety ; but where the payment is made after the completion of the bar of the statute, it revives the debt only as to the party making the payment.' 1 Sljort V. Bryant, 10 B. Mon. (Ky.) 10. 2 Conn «. Colbum, 7 N. H. 368. 8 Peabody v. Chapman, 20 N. H. 418. ^ Cunningham v. Smith, 1 Havp. (S 0.) Eq. 90 ; United States v. Preston, 4 Wash. (U. S. C. C.) 446. But contra, see Shultz II. Carter, Spears (S. C.) Eq. 583, where it was held that the surety could, upon payment of a specialty debt, set it up as a specialty. 6 Ward V. Henry, 5 Conn. 59, 61; Powell V. Smith, 8 Johns. (N. Y.) 249. « Cross v. Allen, 141 U. S. 528. In this case the court said; "Under the Civil Code of Oregon, the period of limita- tion for promissory notes is six years ; and it is argued that, as the notes in this controversy were not sued on until more than six years from the dates when they respectively became due, an action on them would not lie, notwithstanding the fact that the maker made payments of interest upon them from time to time. The facts in this matter are these : The first note was dated Nov. 1, 1871, payable in three years. Consequently it matured Nov. 4, 1874, and if no payment of interest had been made the bar of the statute would have been complete Nov. 4, 1880 ; but in 1877, 1878, 1880, and on the 22d of De- cember, 1881, partial payments of interest were made on the note by Thomas Cross or in his interest. The second note was dated Jan. 23, 1872, payable in one year, and consequently matured Jan. 26, 1873. The bar of the statute on this note would have been complete Jan. 26, 1879, had no interest been paid upon it iu the mean time. It is averred in the bill and ad- mitted in the answer that the interest on this note was paid in full up to Jan. 25, 1879, one day before the completion of the bar ; and another payment of interest was made Feb. 1, 1883. This suit was com- menced August 6, 1884. Consequently it is to be observed that there never was a period of six years between the making of either note and the bringing of this suit, that no payments were made upon them. Section 25 of the Code of Civil Procedure of Oregon provides as follows : ' When- ever any payment of principal or interest is made on an existing contract, whether it be bill of exchange, promissory note, bond, or other evidence of indebtedness, after the same becomes due, the limitation shall commence from the time the last payment was made.' " It is conceded that the payments of in- terest above referred to served to keep the debt alive, so far as the principal was con- cerned ; but it is argued that they did not do so with reference to the surety. Pluma F. Cross, or her estate, especially in view of the fact that she died before the matu- rity of either note, and also in view of the fact that she never signed the notes at all, 400 STATUTES OP LIMITATION. [chap. XIII. So long as demaDds secured bj- a mortgage are not barred bj' the statute, there can be no laches in prosecuting a suit upon the mortgage to enforce them. Lamar, J., in the case last cited upon this point, saj-s : "The question of laches and staleness of claim virtually falls with that of the defence of the statute of limitations. So long as the demands secured were not bai'red by the statute of limitations there could be no laches in prosecuting, a suit upon the mortgage to enforce those demands.. The mortgage is virtually a security for the debt, and an incident of it.^ And it is immaterial that the failure to sue upon the demands may have resulted injuriously to the surety, so long as thei'e was no variation in the original contract of suretyship, either as respects a new consideration or a definite extension of time, since it is a familiar principle of law that the mere omission or forbearance to sue the principal without the request of the surety will not discharge the surety." but became a legal surety by reason of having signed the mortgages. " This presents a question worthy of much consideration. At common law, a payment made upon a note by the princi- pal debtor before the completion of the bar of the statute served to keep the debt alive, both as to himself and the surety. Whit- oomb V. Whiting, 2 Dougl. 662 ; Bui-leigh V. Stott, 8 Barn. & C. 36 ; Wyatt v. Hod- son, 8 Bing. 309 ; Mainzinger o. Mohr, 41 Mich. 685. " That is the rule in many of the States of this Union, — in all, in fact, where it has not been changed by statute. National Bank of Delevan v. Cotton, 63 Wis. 31 ; Quim- by V. Putnam, 28 Me. 419. At common law, and in those States where the common law rule prevails, a distinction is made be- tween those cases in which a part payment is made by one of several promisors of a note before the statute of limitations has attached, and those in which the payment is made after the completion of the bar of the statute ; it being held in the former that the debt or demand is kept alive as to all, and in the latter, that it is revived only as to the party making the payment. Atkins V. Tredsold, 2 Barn. & C. 23 j Sig- oumey v. Drury, 14 Pick. (Mass.) 891 ; Ellicott V. Nichols, 7 Gill (Md.), 85, and cases cited. The reason of this distinction lies in the principle that,, by withdrawing from a joint debtor the protection of the statute, he is subjected to a new liability not created by the original oontiaot of indebtedness. "There is no statute of Oregon, so far as we have been able to discover, chang- ing the common law rule of liability with reference to sureties. Consequently, under the admitted facta of this case, it must be held that the statute of limitations of the State never operated as a bar to the enforce- ment of the original demands against both the principal and the surety. " Nor do we think the death of the sure- ty before either of the demands matured makes any difference, in principle, where, as in this case, the liability is not of a per- sonal nature, but is an incumbrance upon the surety's property. We are aware that there is authority holding that payment of interest by the principal debtor, after the death of the surety, but before the stattte of limitations has run against the note, will not prevent the surety's execntors from pleading the statute. Lane v. Doty, 4 Barb. (N. Y. ) 530 ; Smith v. Townsend, 9 Rich. (S. C.) L. 44 j Byles, Bills, Sec. 353 ; 2 Parsons, Notes & Bills, 669, and note t. But we know of no authority ex- tending this rule to the representatives of a deceased surety whose liability was not personal but upon mortgaged property. On the contrary, the cases of Miner v. Graham, and Bank of Albion v. Burns, supra, seem to recognize the doctrine which we are inclined to accept. We con- clude, therefore, that the contract of sure- tyship in this case was not terminated by the death of the surety before the maturity of the indebtedness." 1 Ewell V. Daggs,108 IT, S. 148. § 146.] MISCELLANEOTJS CAUSES OF ACTION. 401 Sec. 146. Contract of Indemnity, Guaranties, &o. — Contracts of indemnity are so largely dependent upon the particular stipulation that the guarantor has made that no general rule can be given as to when his liability attaches against those for whom he has assumed that posi- tion that will be applicable in all cases, except that the statute begins to run when the promissee has taken all the requisite steps to charge him with liabilitj', and his liability under his contract to pay the debt is full and complete,^ and the promissee cannot prolong this period of lia- bility b}- any unreasonable delay in taking these requisite steps. ^ A guaranty has aptlj- been termed a contract to indemnify another upon a contingency, and is in the nature of a claim for unliquidated damages.' They are either absolute or contingent,* and the distinction between, them in this respect is of vital importance in determining the time when, the statute begins to run in favor of the guarantor. Thus, an absolute 1 In Colvin v. Buckle, 8 M. & "W. 680, it appeared that in 1816 G. shipped goods on board a. vessel chartered by him for Calcutta, and B. & Co. made advances to enable him to do so, under an arrangement that the goods should be transmitted to the agents at Calcutta of B. & Co., 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 reim- burse themselves their charges and hold the balance at the disposal of G. In No- vember, 1817, G. being in difBlculties and indebted to the defendants in £850, the defendants and 6. applied to B. & Co. to pay off this debt, by a farther advance to G. on his consignment, and the defendants gave B. & Co. the following guaranty: "Messrs. B. & Co., 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 upou us to do so, either from the state of G.'s spending account with you, or from any other circumstances.' B. & Co. there- upon accepted and paid a bill for £850, drawn by G. on them in favor of the de- fendants. 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 she lay, not to deliver any part of the cargo without his authority; they thereupon sold the cargo, and paid VOL. I. — 26 the owner's demand for freight, and, in. consequence of conflicting claims from G.'s assignees and from B. & Co., filed an in- terpleader bill, and paid the balance of the- proceeds Into court. Proceedings at law and equity were continued between all the- above parties, under legal advice, up to. the year 1837, when the result was that, B. & Co. were obliged to pay C.'s costs. In 1838 B. & Co. demanded of the defend- ants the £850 due by the guarantee, with interest, and their share of the expenses, incurred in the law proceedings, and on their refusal to pay brought an action^ against them on the guaranty. Held, first, that the statute of limitations began to run against the plalntiflTs, not from the- termination of the legal proceedings in 1837, but from the return and sale of the- cargo in 1818, when all the facts were as- certained upon which the defendants' legal liability depended, and therefore that it was a bar to the action; secondly, that the defendants could not be made liable under the guaranty for the expenses incurred by the plaintiffi in the law proceedings. 2 In Edd'owes v. Neel, 4 Ball. (Penn.) 133, a delay of nineteen years fully ac- counted for was held not of itself sufBeient to discharge the guarantor. 8 Sampson v. Burton, 2 B. & B, 89. * Eudy », "Wolf, 16 S. & E. (Penn.) 79; Woods v. Sherman, 71 Penn. St. 100; Moakly ■•>. Eiggs, 19 Johns. (N. Y.) 69; Sylvester v. . Downer, 18 Vt 32; Allison u. Waldham, 24 111. 132. 402 STATUTES OF LIMITATION. [CHAP. xin. guaranty is one bj- the terms of which the guarantor undertakes that another person shall perform bj^ the time fixed in the contract, and upon which he becomes liable to pay the debt or damages at maturity upon the other's failure ; as, "I guarantee the paj-ment of this note at maturity." ^ Such a guaranty is absolute, and a right of action accrues against the guarantor immediatelj'^ upon the maturitj* of the pote, with- out taking any steps against the maker of the note.'' So where on the sale of goods it was agreed that they should be paid for on delivery, and the defendant signed a guaranty as follows : " On the part of A. and B. I hold mj-self responsible with them on the above contract," it was held that his undertaking bound him to a direct performance of the contract, and was in effect that he or his principals would pay for the goods on delivery.' Where the guaranty is absolute, the guarantor is not entitled to demand or notice ; but his liabilitj' to suit arises and is fixed at the same moment that an action accrues against the principal debtor, or, if a later period is in terms fixed upon, upon the arrival of the time named therein,* and the guarantor may be sued thereon with- out any previous suit against the princiiDal debtor.^ Contingent guar- 1 Koch V. Melliom, 25 Penn. St. 89; Gocliran u. Dawson, 1 Miles (Penn.), 276. 2 Roberts v. E,iddle, 79 Penn. St. 468; Eeigart i>. White, 52 iil. 438 ; Anderson V. Washabaugh, 43 id. 115. In Williams V. Granger, 4 Day (Conn.), 444, the de- fendant made a special contract on the back of a promissory note payable to the plaintiff, in which he guaranteed, for value received, that the maker then was, and would continue to be until the note should become due, of sufficient responsibility to pay it; and then added, "and I further ■ engage with the promissee that if the moneys mentioned in said note are not paid by the 6th of September, 1807, I will on that day advance the same to him, tak- ing and holding the note as my own at my own risk." The maker did not pay the note either at maturity or on the day stated in the guaranty. The court held that the guaranty became absolute on the failure of the maker of the note to pay on the day specified, and that a right of ac- tion then Bccrued against the defendant upon the guaranty without a previous suit against the maker or any proof of the maker's insolvency. Where a person contracts to indemnify a person and save him harmless from cer- tain claims, the statute does not begin to run until the person to whom the indem- nity .is given has paid the debt. Hall V. Thayer, 12 Met. (Mass.) 130. And such also is the rule where money is paid for another at his request. Perkins v. Littlefield, 5 Allen (Mass.), 370. " King V. Studebaker, 15 Ind, 45 ; Cross V. Ballard, 46 Vt. 415 ; Campbell V. Baker, 46 Penn. St. 243 ; Krumph V. Hatz, 62 id. 525. A writing in the words, "I will guarantee the payment to you of $625, in treasury warrants to be paid on or before the 20th August on and for account of J. W.," was held an orig- inal and absolute promise. Matthews v. Ohrisman, 20 Miss. 595. « Smith V. Ide, 3 Vt. 301 ; Dickerson V. Derrickson, 30 111. 574 ; Bowman i;. Curd, 2 Bush (Ky.), 665 ; Young v. Brown, 3 Sneed (Tenn.), 89; Lane v. Levillian, 4 Ai-k. 76; Egeti. Barnitz, 8 Penn. St. 304; Breed v. Hillhouse, 7 Conn. 623; Douglass V. Howland, 24 Wend. (N. Y.) 35 ; Noyes I!. Nichols, 28 Vt. 160 ; Sibly v. Stuhl, 15 N. J. L. 332; Bank v. Hammond, 1 Eich. (S. C.) 281 ; Beebe v. Dudley, 26 N. H. 249; McDougal v. Calef, 84 N. H. 534; Simons v. Steele, 36 id. 73 ; Cox v. Brown, 6 Jones (N. C.) L. 100. ' Bank of New York v. Livingston, 2 .Johns. (N. Y.) Cas. 409; Morris v. Wads- worth, 17 Wend. (N. Y.) 103 ; Huntress V. Patton, 20 Mo. 28 ; Kaoh v. Melhorn, 25 Penn. St. 89; Roberts v. Riddle, 79 id. 468; Cochran v. Dawson, 1 Miles (Penn.), § 147.J MISCELLANEOUS CAUSES OP ACTION. 403 anties are those in which the guarantor does not assume an absolute liability', but binds himself to perform in case the debtor fails to do so. Thus, where a person guarantees that a note "is collectible," he does not bind himself absolutel3- to paj' the note, but only to do so in the event that the maker proves insolvent.^ In other words, a contingent guaranty is one which only becomes absolute when the creditor, bj- due and unsuccessful diligence to obtain satisfaction from the principal, fails to do so, or by circumstances that excuse diligence.- A guarantj- " against loss" on a note, bond, or moitgage, is a contingent one, put- ting the creditor on his diligence ; ' so also a guaranty that a note " is good," * or to pay in ease the holder " fails to recover the monej- on said note," ^ are all contingent guaranties ; and, indeed, so are all that impose upon the person to whom they are given the duty of fii'st exhausting his remedies against the principal.' The distinction, then, to be observed is, that in the case of a contingent guaranty a right of action does not accrue against the guarantor immediatelj- upon the failure of the principal to perform, but imposes upon the creditor the duty of exhausting his remedy against the principal before he resorts to the guarantor, or must show satisfactorily that the affairs of the principal were in such a condition that any pursuit of him would have proved fruitless.' Consequently, in the case of a contingent guaranty, as the statute begins to run when the right of action against the guar- antor becomes complete, it follows that it only attaches in his favor when the necessary steps to fix his liability have been taken and are fully completed. Sec. 147. Money paid for Another. — Where money is paid for another under such circumstances that the law will implj- a promise to repaj- it, and no time is fixed for its repayment, the right of action accrues at once ; but if the payment is made in liquidation of a note or contract not matured, the right of action does not accrue until the debt has matured, and if anything remain to be done to effectuate the pay- ment, a right of action does not accrue until that is done. Thus, where an administratrix brought an action to recover money paid in liquidation, one of two notes secured by mortgage, it was held that the statute began 276; Smeidel v. Llewyllyn, 3 Phila. 45 ; Pollock v. Hoag, 4 E. D. Sm. ( X. Y. (Penn.) 70 ; Douglass v. Eeynolds, 7 Pet. C. P.) 473 ; Vanderkemp v. Shelton, 11 (U. S.) 113; Brown v. Curtis, 2 N. Y. 225. Paige (N. Y.) Cli. 28; Newell v. Fowler, 1 McDoal 11. Yomans, 8 Wall. (Penn.) 23 Barb. (N. Y.) 628. 361. ' Dj'er v. Gibson, 16 Vis. 557; Parker 2 Gilbert v. Henck, 30 Penn. St. 205; v. Culvertsen, Wall. Jr. (U. S.) 149; Ben- Woods V. Sherman, 71 id. 100; Hoffman ton v. Fletcher, 31 Vt. 418 ; Wbeeler v. V. Brechtel, .52 id. 190. Lewis, 11 id. 265; Dana v. Conant, 30 id. » Griffithi). Eobertson, 15Hun(y. Y.), 246; Sandford v. Allen, 1 Cash. (Mass.) 344; McJIuriey v. Noyes, 72 K Y. 523. 473; McClurg v. Fryer, 15 Penn. St. 293; 4 Cooki;. Nathan, 16 Barb. (>^.Y.)342. Cody v. Sheldon, 38 Barb. (N. Y.) 103 ; 6 Jones V. Ashford, 79 X. C. 172. Stark v. Fuller, 42 Penn. St. 320; Thomas 6 Compston®. McNair, 1 Wend. (N. Y.) ■•>. Woods, 4 Cow. (N. Y.) 173. 404 STATUTES OF LIMITATION. [chap. XIII. to run from the date of the discharge of the mortgage, and not from the time when the payment was made.* Sec. 148. Action under Enabling Acts. — Where a statute gives a party the right to sue on an existing claim where such right did not exist before, and is silent as to the time when the statute' shall begin to run thereon, it attaches and begins to rim from the day the act first took effect, unless suit might have been brought in the name of another, — as the assignee of a case, — in which case it begins to run from the time the claim first accrued." Sec. 149. Actions against Stockholders of Corporations. — Where, bj' statute, the stockholders of a corporation are made liable for the debts of the corporation, their liability commences when the liability of the corporation commences, and ends at the same time that liability on the part of the corporation ends. But, if the statute provides that no action shall be commenced against them until after judgment and exe- cution unsatisfied against the corporation, their liability does not begin, nor the statute begin to run in their favor, until the return of the exe- cution aforesaid. But if, notwithstanding such provision, the statute also provides that they may be jointly sued with the corporation, the statute begins to run in their favor at the same time that it begins to run in favor of the corporation.' The statute begins to run upon sub- 1 Lun V. McLoon, 58 Me. 321. " Cross's Case, 4 Ct. of CI. fU. S.) 271. ' Conklin v. Fm-man, 8 Abb. (N. Y.) Pr. N. s. 161. Baker v. Atlas Bank, 9 Met. (Mass.) 182. No privity exists between the stock- holders and a creditor of the corporation. The stockholder can only be reached by the creditor through the corporation ; and if the debt due from the stockholder is bai-red as against the corporation, the oi-ed- itor cannot enforce its payment in equity. Bassett v. Hotel Co., 47 Vt. 313; Terry V. Anderson, 95 TJ. S. 635; Manufacturing Co. V. Bank, 6 Rich. Eq. (S. C.) 234; Cherry v. Lamarr, 58 Ga. 641. And the running of the statute between the cor- poration and the stockholder is not sus- pended by the recovery of a judgment against the corporation, or by any note or written obligation of the corporation given by the oificers after it has gone into liqui- dation. Stilphen v. Ware, 45 Cal. 110. After a corporation has gone into voluntary liiiuidation, it is to all intents and pur- poses in the same condition as a dissolved partnership, and cannot create any new debt against a corporation. White v. Knox, 111 U. S. 784; Parker v. Macomber, 18 Pick. (Mass.) 505. It cannot renew or extend any stock liability by any contract made with the creditor. Where a bill in equity is brought by a creditor against a corporation in behalf of all the creditors, no creditor is entitled to recover who does not come forward to present his claim. Richmond v. Irons, 121 U. S. 27. In Rector, &c. v. Vanderbilt, 98 N. Y. 170, the plaintiff leased to a corporation, organized under the general manufactur- ing act, certain premises for a term of years commencing Nov. 1, 1872. The lessee, among other things, agreed to pay all taxes and water-rates imposed each year, and in case the same were not paid before the first day of February next, after they were imposed, it agreed to pay to the plaintifl: on that day, as additional rent, the amount necessary to pay and discharge them. The lessee did not pay the taxes and water-rates imposed for the years 1873 and 1874. The lessee failed to make an- nual reports as required by said act for the years 1873, 1874, and 1875.' Because of such failure this action was brought in January, 1878, against the defendant, a trustee of said corporation, to recover the § 149.] MISCELLANEOUS CATTSES OF ACTION. 405 scriptions to stock of a corporation from the time when each call is made for an instalment of the amount subscribed for.^ amount of taxes and water-rates. It was held that at the time the reports should have been filed both for the years 1874 and 1875, a debt existed for the taxes and Water-rates of the preceding years, but as the lessee had the alternatiTe either to pay to the proper authorities or to pay on the first of February thereafter to the plaintiff, no cause of action accrued to it until that time ; that, therefore, as to the taxes, &c., for 1873, the three years' statute of limi- tations began to run Feb. 1, 1874, and the cause of action was barred, but that for the taxes, &c., of 1874, the action was not barred and plaintiff was entitled to recover. In Brinckerhoff v. Bostwiok, 99 N. Y. 185, reversing 39 Hun, 352, it was held that the provision of the code, limiting to three years the time for bringing an action against a director or stockholder of a moneyed corporation "to recover a pen- alty or forfeiture imposed, or to enforce a liability created by law," does not apply to an equitable action against the director of such a corporation to require an account- ing and to recover damages for their neg- lect and inattention to the duties of their trusts whereby they suffered corporate funds to be lost and wasted. Such an action is simply the enforcement of a com- mon law liability, while the words of the provision, "a liability created by law," have reference only to a liability created by statute. The limitation applicable to such an action is ten years. "Where a national bank had become in- solvent, and one of its directors had been appointed receiver, an action was brought against him and the other directors for neglect of their duties, by one of the stock- holders on behalf of himself and the other stockholders; Held,"rthat as to other stock- holders who became parties to the action upon their petition, the statute of limita- tions began to run from the time of the commencement of the action, not from the time of filing their petitions ; that for the purposes of the statute of limitations the action must be treated as if all the stockholders were original plaintiffs. The original plaintiff could, at any time before other stockholders were made parties, and before judgment, have settled his individ- ual claim, and executed a release thereof and discontinued the action, but upon prosecution to judgment it was for the benefit of all the stockholders and he ceases to have control over it. If stockholders do not come in, the suit having been com- menced for their benefit, their rights are not barred by any lapse of time sifter the commencement. Cunningham v. Pell, 6 Paige (N. Y. ) , 655, was distinguished. The stockholders of a corporation are not personally liable for the debts of a corporation against which the statute had run before its charter expired. Van Block V. Whitlock, 3 Paige (N. Y.) Ch. 409. In Hollingshead t>. Woodward, 107 N;Y. 69, under the provision of the general manufacturing act, declaring, "that no suit shall be brought against any stock- holder" of a company organized under said act, "who shall cease to be a stock- holder, . . . unless the same shall be com- menced within two years from the time he shall have ceased to be a stockholder," whenever a stockholder shall be divested of his interest in or control over the affairs of the corporation, by actual dissolution thereof by formal judgment, or by a sur- render of its corporate rights, privileges, and franchises, the time begins to run, and at the end of two years therefrom the stockholder is no longer liable for any debt of the coiporation. In an action seeking to charge defend- ant as a stockholder of such a corporation with a judgment against it, on the ground that the whole capital stock was not paid in, or a certificate of payment filed as re- quired by the act, the answer set up among other things, in substance, that more than four years before the commencement of the action a judgment was rendered in an ac- tion against the corporation sequestrating its property, appointing a permanent re- ceiver thereof, and restraining its officers 1 Western R. R. Co. v. Avery, 64 N. C. 491. 406 STATUTES OF LIMITATION. [CHAP. XIII. Sec. 150. Stock Subscriptions. — Where no time is fixed for pay- ment by the terms of a subscription for the stock of a corporation, but the same is left subject to call, the statute begins to run from the date of each call for an instalment thereof bj' the proper authoritj-.' In a Pennsylvania case/ by the terms of the subscription the money there- for was paj-able " in such manner, at such times, and in such proportions as shall be determined by the president and managers, and it was held that the statute did not begin to run thereon until after such determina- tion and a demand made in pursuance thereof. But if the statute fixes the time within which payment shall be made, or if the time of payment is fixed in the subscription contract, the statute begins to I'un from the time therein designated for payment, as at that time, and not before, an action will lie for its recover3'. If no time is designated either by statute or in the subscription itself, it would probablj- be treated as due upon demand, and the statute would begin to run from the date of sub- scription, upon the ground that where no time for payment is designated, it is treated as a debt due on demand, and the statute attaches from its date.' Where such notes are made payable upon a certain number of days' notice, a right of action does not accrue until the expiration of such notice duly given.^ If, by the charter or law under which the cor- poration is founded, the subscriptions do not become due until called for by resolution of the board of directors, the statute does not begin to run until such call has been regularly made.^ If the subscription fixes and agents from all interference with it ; ' Griibbo v. Vicksburgh, &c. E. R. Co., that said corporation has not since trans- 50 Ala. 398 ; Phenix Warehousing Co. v. acted any business ; that the receiver took Badger, 67 N. Y. 294. possession of the property, and has dis- * Cole u. Juliet Opera House Co., 79 111. tributed the proceeds among creditors pur- 96. suant to order of the court, the same not ' Bouton v. Dry Dock Stage Co., i being sufficient to pay all of the company E. D. Sm. (N. Y. C. P.) 420; Ross v. debts, and that defendant by reason thereof Lafayette, &o. R. R. Co., 8 Ind. 297. ceased to be a stockholder from the date In Williams v. Taylor, 120 N. Y. 244 of said judgment. On demurrer, held, reversing 41 Hun, 545, certain paid-up that .the answer set up a good defence ; stock of a corporation in the hands of its that by the conceded facts it appeared that stockholders, was placed by them in the when the organization was divested of its hands of a trustee for sale. M., the de- rights, privileges, franchises, and property, fendant's intestate, subscribed for a portion by virtue of the appointment of a receiver, of this stock, agreeing to pay therefor in it for all practical purposes ceased to exist, accordance with the terms of the proposi- and the defendant ceased to be a stock- tion under which subscriptions were in- holder within the meaning of the act, and vited. By those terms one-third of the after the expiration of two years he was price was to be paid down as soon as the discharged from all liability. stock was subscribed for, and the balance Kiucaid V. Dwindle, 69 N. Y. 548, in instalments when called for by the board distinguished and limited. of trustees for the purposes of the busi- 1 Western E. R. Co. v. Avery, 64 K C. ness. In an action upon the subscription, 491 ; Pittsburgh & Connellsville E. R. Co. more than six years after the payment V. Plummer, 37 Penn. St. 413. down was made, but within six years after 2 Sinkler v. Turnpike Co., 3 P. & W. the first call, held, that it was not contem- (Penn. ) 149. plated by the contract that the whole sub- § 150.] MISCELLANEOUS CAUSES OF ACTION. 407 the time of payment, no demand is necessaiy, and the subscription be- comes payable upon the arrival of the time named therein ; * and such also is the rule when the time of payment has been fixed by a by-law of the company." Thus, where by the terms of the subscription shares of stock were to be paid for hy instalments of ten per cent every sixty da3-s after the work was put in contract, it was held the subscriber was not entitled to notice of the time of the contract, and that bringing a suit upon the subscription was a sufficient demand.' In other words, in such cases the subscriber is bound to inquire for himself and ascer- tain whether his subscription becomes due at the times specified or not. Generallj-, unless notice of an assessment or call is required by the char- ter or subscription, it is not an indispensable requisite to a right to bring an action ; and, where it is not, the right of action doubtless dates from the date of the call.* In a case in the United States Supreme Court,' it was held that a scription price should be paid at once ; that, assuming that the call contemplated would be satisfied by a simple demand, the right to make actual demand was only complete when the exigencies of the busi- ness required it, and the trustee had no right to call for all at once, unless it was so required; that in the absence of proof to the contrary, it was to be presumed that the calls were made in accordance with the contract as thus construed, and so no part of the balance was due until a call was made; that, therefore, the statute of limi- tations was not a bar, and a dismissal of the complaint was error. L. 0. A. & N. Y. R. K. Co. v. Mason, 16 N. Y. 451; Howlandi;. Edmonds, 24 id. 307; Tuckerman v. Brown, 33 id. 297, distinguished. 1 New Albany, &c. K. E. Co. v. Pick- ens, 5 Ind. 247. ^ Schenectady, &o. Plank Road Co. v. Thatcher, 11 N. Y. 102 ; Winter v. Mus- cogee R. R. Co., 11 Ga. 438. 3 Breedlove v. Martinsville, &c. R. R. Co., 12 Ind. 114. * Eppes V. Mississippi, &c. R. R. Co., 35 Ala. 33. 5 Glenn v. Leggett, 135 U. S. 633 ; in this case Blatchfokd, J. , in delivering the opinion of the court, said : " The facts set forth in the amended petition in the present case appeared in the case of Hawkins v. Glenn, 131 U. S. 319. That was a suit at law, brought iu the Circuit Court of the United States for the Eastern District of North Carolina, to recover the amount of the assessment or call of 30 per cent, made by the decree of Chancery Court of the city of Richmond, on Dec. 14, 1880. The statute of limitations of North Carolina, of three years, was pleaded as a defence. The suit having been brought within three years from Dec. 14, 1880, it was contended in this court, for the defendant, that the cause of action did not accrue within three years before the suit was brought ; that the case was essen- tially unlike that of a call made by the authorities of a corporation which was still doing business ; that, during the whole of the three yeare, the provision in the subscription, as affected by the statute of Virginia, which submitted the sub- scriber to the discretion of the president and directors, as to the time at which calls might be made, had become null ; and that, inasmuch as, after the corpora- tion stopped business, the time of making a call was no longer a matter of discretion, but was subject to the direction of the law, the lapse of time before bringing the suit in the Chancery Court of the city of Rich- mond was to be counted in reckoning, under the statute of limitations, whether the suit subsequently brought against the defendant, under the call made by that court, had been brought in good time. It was also contended in that suit by the defendant, that the decree of the Chancery Court of the city of Richmond was void as against him, because he was 408 STATUTES OF LIMITATION. [OHAP. xriT. stockholder is bound by a decree against the corporation, such as mak- ing an assessment in the enforcement of a corporate duty, although as not a party to the suit. On the latter point this court said : " We understaind the rule to be otherwise, and that the stockhoUler is bound by a decree of a court of equity against the corporation in en- forcement of a corporate duty, although not a party as an individual, but only through representation by the company. A stockholder is so far an integral part of the corporation that, in the view of the law, ho is privy to the proceedings touch- ing the body of which he is a member," — .citing Sanger c;. Upton, 91 U. S. 56; Morgan County v. Allen, 103 TJ. S. 498 ; Glenn v. Williams, 60 Md. 93 ; Hamble- ton V. Glenn, 13 Va. L. J. 242. This court said that it concurred in the decision of the Court of Appeals of Vir- ginia, in Hambleton v. Glenn, made as to the statute of Virginia, that "as the'oor- poration, notwithstanding it may have ceased the prosecution of the objects for which it was organized, could still pro- ceed in the collection of debts, the enforce- ment of liabilities, and the application of its assets to the payment of its creditors, all corporate powers essential to these ends remained unimpaired ; " and that it was the decision ' ' of the highest tribunal of the State where the corporation dwelt, in reference to whose laws the stockholders contracted, and in whose courts the cred- itors were obliged to seek the remedy accorded," — citing Canada Southern R. Co. V. Gebhard, 109 U. S. 527 ; Barclay v. Talman, 4 Edw. Ch. 123, 6 N. Y. Ch. L. ed. 821 ; Bank of Virginia v. Adams, 1 Paris, Eq. Gas. 534; Patterson w. Lynde, 112 111. 196. This court further said : " We think it cannot be doubted that a decree against a corjioration in respect to corporate matters, such as the making of an assess- ment in the discharge of a duty resting on the corporation, necessarily binds its mem- bers, in the absence of fraud, and this is in- volved in the contract created in becoming a stockholder. The decree of the Rich- mond Chancery Court determined the validity of the assessment ; and that the lapse of the time between the failure of the company and the date of the decree did not preclude relief, by creating a bar through statutes of limitatibn or the application of the doctrine of laches. And so it has been held in numerous cases referred to on the argument. The court may have erred in its conclusions, but its decree cannot be attacked, collaterally ; and, indeed, upon a direct attack, it has already been sustained by the Virginia Court of Appeals. Hambleton v. Glenn, supra. . . . Although the occurrence of the necessity of resorting to unpaid stock may be said to fix the liability of the sub- scriber to respond, he cannot be allowed to insist that the amount required to dis- charge him became instantly payable, though unascertained, and though there was no request, or its equivalent for pay- ■ ment. And here there was a deed of trust made by the debtor corporation for the benefit of its creditors ; and it has been often ruled in Virginia that the lien of such a trust deed is not barred by any period short of that sufficient to raise a presumption of payment. Smith v. Wash- ington City, V. M. & G. S. R. Co., 33 Gratt. 617 ; Bowie v. Poor School Society, 75 Va. 300 ; Hambleton v. Glenn, 13 Va. L. J. 242. This deed was not only up- held and enforced by the decree of Dec. 14, 1880, but also the power of the substituted trustee to collect the assessment by suit in his own name was declared by the Court of Appeals in Vir- ginia, in Lewis v. Glenn, 84 Va. 947. See also Baltimore & 0. R. Co. v. Glenn, 28 Md. 287. By the deed, the subscrip- tions, so far as uncalled for, passed to the trustees, and the creditors were limited to the relief which could be afforded under it, while the stockholders could be subjected only to equality of assessment ; and as the trustees could not collect except upon call, and had themselves no power to make one, rendering resort to the president and directors necessary, or, failing their action, then to the courts, it is very clear that the statute of limitations could not com- mence to run until after the call was made." This court then cited the rule laid down in Scoville v, Thayer, 105 U. S. § 151.] MISCELLANEOUS CAUSES OP ACTION. 409 an individual lie was not a party to the action, the corporation being treated as his agent. And this is so althoiigh the corporation has ceased the prosecution of the objects for which it was organized. It being held, that for the collection of the debts, the enforcement of liabil- ities, and the paj-ment of its creditors, its corporate powers still remain unimpaired. Upon the insolvency- of a corporation, the obligation of the stockholder to pay enough of the amount unpaid on his stock to paj' its debts does not become complete until a call or demand for payment, and the statute does not begin to run until such call or demand is made ; and he cannot set up the statute as a bar to an action to collect his subscription for the payment of creditors because the company did not discharge its corporate duty in respect to its creditors earlier. Sec. 151. Money payable by Instalments. — We have already seen * that where money is paj-able by instalments, the statute begins to run 143, as applying to the case before it, and said : "In that case it was said by Mr. Justice Woods, speaking for the court : ' There was no obligation resting on the stockholder to pay at all, until some authorized demand in behalf of creditors was made for payment. The defendant owed the creditors nothing, and he owed the company nothing save such unpaid portion of his stock as might be necessary to satisfy the claims of the creditors. Upon the bankruptcy of the company, his obligation was to pay to the assignees, upon demand, such an amount upon his unpaid stock as would be sufficient, with the other assets of the company, to pay its debts. He was under no obligation to pay any more, and he was under no obligation to pay anything until the amount necessary for him to pay was at least approximately ascertained. Until then his obligation to pay did not become complete. ' And it was held ' that when stock is subscribed to be paid upon call of the company, and the company refuses or neglects to make the call, a court of equity may itself make the call, if the interests of the creditors require it. The court will do what it is the duty of the company to do. . . . But under such circumstances, before there is any obliga- tion upon the stockholder to pay without an assessment and call by the company, there must be some order of a court of competent jurisdiction, or, at the very least, some authorized demand upon him for payment ; and it is clear the statute of limitations does not begin to run in his favor until such order or demand. Con- stituting, as unpaid subscriptions do, a fund for the payment of corporate debts, when a creditor has exhausted his legal remedies against the corporation which fails to make an assessment, he may, by bill in equity, or other appropriate means, subject such subscriptions to the satis- faction of his judgment, and the stock- holder cannot then object that no call has been made. As between creditor and stockholder, ' it would seem to be singular if the stockholders could protect them- selves from paying what they can owe by setting up the default of their own agents.' Hatch V. Dana, 101 U. S. 205, 214. The condition that a call shall be made is, under such circumstances, as Mb. Justice Bbadlet remarks in Ee Glen Iron AYorks, 20 Fed. Rep. 674, 681, 'but a spider's web, which the first breath of the law blows away.' And as between the stock- holder and the corporation, it does not lie in the mouth of the stockholder to say, in response to the attempt to collect his subscription, for the payment of creditors, that the claim is barred because the com- pany did not discharge its corporate duty in respect to its creditors earlier. Morgan County V. Allen, 103 U. S. 498. These considerations dispose of the alleged error in not sustaining the defence of the statu- toiybar." i Ante, p. 360 et seq. 410 STATUTES OF LIMITATION. [CHAP. XIII. upon each instalment from the time when it becomes clue.^ But we have also seen that this rule does not apply to interest payable annually ; but that in such a case, although an action lies for the interest as it ma- tures, yet the statute does not begin to run thereon until some part of the principal becomes due.^ In a Pennsylvania case' it was held that where there was a parol guaranty of the suflSciency of a mortgage given to secure a bond payable by instalments, the statute does not begin to run until six years after the last instalment becomes due.* So where subscriptions to the stock of a turnpike company by a statute were made paj-able at such times and in such proportions " as shall be deter- mined by the president and managers," it was held that the statute, did not begin to run on any part thereof until after such determination, and a demand made in pursuance thereof.' Sec. 152. Over-payments. Money paid by Mistake. — Where money is paid by one to another bj' mistake, the statute begins to run from the time of the payment, and not from the time the mistake was discovered.' Thus, where under a mistake as to their liability the plaintiffs paid upon the return of a bill of exchange drawn in Kentucky and payable in New Orleans, which was protested, ten per cent as dam- ages, where under the laws of Kentucky no damages were collectible, it was held that the statute began to run, upon the right to recover it back, from the time the money was paid, and not from the time when thej' ascertained what their rights were in the premises.' But where the parties are in the habit of striking balances at stated periods, it is held that the statute begins to run from the striking of such balance. In an action by a bank to recover of a depositor an amount of money 1 Bushe V. Stowell, 71 Penn. St. 208 ; in favor of the purchaser from the time the Baltimore Turnpike Co. v. Barnes, 6 H. & first instalment became due, and that the J. (Md.) 57 ; Burnhani v. Brown, 23 Me. right of the vendor to bring an action to 400. In Robertson v. Pickerell, 77 N. C. set aside the sale became complete upon 303, where the plaintiff made a contract the first default, and presumption ran with the defendant to do certain work, against it from that time, and not from which was to be measured and paid for the date of the last instalment, monthly, it was held that the statute be- ^ Sinkler v. Turnpike Co. , 3 P. & W. gan to run at the end of each month. (Penn.) 149. In order to prevent the 2 Grafton Bank o. Doe, 19 Vt. 463; operation of the statute, because of a con- Ferry w. Ferry, 2 Gush. (IVTass.) 92; Hen- tingency, the contingency must be one deraon v. Hamilton, 1 Hall (IST. Y. S. C.), named in the contract itself; and the fact 814. that a demand depends upon the con- ' Overton v. Tracy, 14 S. & R. (Penn.) tingency of the rectification of a mistake 311. in the contract by a court of equity, does * See also to the same effect Jones v. not prevent the operation of the statute. Trimble, 3 Rawle (Penn.), 381 ; Roe v. Jones «. Lightfoot, 10 Ala. 17. Foster, 4 W. & S. (Penn.) 351. In Gon- « Clark v. Dutcher, 9 Cow. (N. Y.) soulin V. Adams, 28 La. An. 598, where 674. the purchase-money for lands sold at ' Bank of United States v, Daniels, 12 Bheriff's sale was payable by instalments, Pet. (U. S.) 32; Shelburne v. Robinson, it was held that the statute began to run 8 111. 597. § 153.] MISCELLANEOUS CAUSES OF ACTION. 411 overpaid to him througli mistake, it was held that the statute began to run from the date of the monthly- balance struck in the depositor's bank- book, and not from the time the money was paid.^ And where an ad- ministrator paid a debt under the erroneous belief that the estate was solvent, it was held that the statute did not begin to run against his claim to recover it back from the time the money was paid, but from the time the insolvency of the estate is ascertained by a decree of in- solvency' and order of distribution.'' But where an executor voluntarily paid over money to a legatee, and ten j-ears afterwards claimed that he liad paid too much and brought an action to recover it back, it was held that the action was barred.' And also, where an administrator found a mortgage-deed among the testator's papers, and assigned it, and it turned out to be a forgerj-, it was held that the statute began to run from the date of the assignment.* Sec. 153. Failure of Consideration. — Where money has been paid upon a consideration that ultimately fails, the statute does not begin to run until such event ; as, until that time, no right of action accrues to recover back the money paid.' Thus, if money is paid upon a contract for the sale of land, which the vendor refuses to or is unable to convey the statute does not begin to run against the vendor for the monej' paid until the vendor has refused or become unable to convey the land, at which time the consideration fails, and a right of action to recover it back arises ; ° and it has been held in some of the cases that the same 1 Union Bank ». Knapp, 3 Pick. (Mass.) the sale of lands. Hilton v. Duncan, 1 96. In Johnsons. Rutherford, 10 Peun. Coldw. (Tenn.) 313. St. 455, where money was overpaid on a * Taylor «. Rowland, 26 Tex. 293; Har- eonti-act for work, it was held that the ris v. Harris, 70 Penn. St. 170; Evans v. statute did not begin to run until the Lee, 28 id. 88; Bowles «. Woodson, 6 Gratt. payment of the balance on final settle- (Va.) 78; Stewart v. Keith, 12 Penn. St. ment. 238. In Baxter n. Gay, 14 Conn. 119, 2 Walker v. Bradley, 3 Pick. (Mass.) after the death of A. in August, 1833, B., 261. C, and D., his heirs, verbally agreed to 3 Shelburne i'. Robinson, 8 lU. 597. make a division of the real estate into See also Gamble v. Hicks, 27 Miss. 781, three parts, and that they should each Johnson v. Rutherford, 10 Penn. St. have one part. The division was made 455. and the parts allotted accordingly; but the * Bree v. Holbrook, Doug. 654. part allotted to B. was of less value than ^ Richards v. Allen, 17 Me. 296. Where that allotted to 0. ; and it was a part of the a debtor conveys lands to his creditor as same agreement that C. should pay B. fifty collateral security for a debt, under an dollars. Deeds were immediately executed agreement that it shall be reconveyed on by all the parties, in pursuance of the payment of the debt, the statute does not agreement; but B. was then feme covert, begin to run upon the creditor's agreement and her husband did not give in her deed to reconvey until an offer of settlement has to C, which was consequently void. Noth- beenmade. Hall u. Fenton, 105 Mass. 516. ing further was done until May, 1837, See Eames v. Savage, 14 id. 425, as to the when a valid deed was executed by B. and time when the statute begins to run for the her husband to C. In an action brought consideration paid upon a parol contract for by B., in 1838, to recover the fifty dollars. 412 STATUTES OF LIMITATION. [chap. XIII. rule obtains where personal property to which the vendor had no title is sold.'' But in Kentucky it has been held that an implied warranty of title is broken at once if the vendor has no title, and that the statute begins to run from the date of the contract ; ^ and such seems to be the doctrine generally held,' especially relative to breaches of warranties as to the quality of property sold.* Where, however, lands are purchased and conveyed by a warranty-deed that is invalid because of the gran- tor's failure to comply with certain statutory requirements, tlie grantee instantly has a right of action to recover it back, and the statute begins to run from that time. Thus, where a person purchased land of a guardian, and the guardian having failed to comply with certain statu- tor3- provisions the deed was a nullity, in an action by the grantee to recover back the consideration-money it was held that the statute began to run from the day the money was paid, and not from the time that the defect in the conveyance was ascertained ; ^ and the same doc- trine was held in Alabama in a case where a person went into posses- sion under a void deed.' Where, under a parol or even a written con- the defendant, among other defences, set up the statute of limitations. The court held that the right of action against C. did not accrue until the delivery of the valid deed to C, and that the action being ■brought within three years from that time was seasonably brought. " Had the con- tract which is stated in the declaration been in writing," said Sherman, J., "the right of action would not have accrued until the deed was given by the plaintiff and his wife to the defendant Harriet. She was not bound to pay for the land until she received a title." 1 Coplinger u.Vaden, 5 Humph. (Tenn.) 629; Gross v. Kiercke, 41 Cal. 111. 2 Chancellor v. Wiggins, 4 B. Mon. (Ky.) 201. ' Richards v. Allen, ante. * Baucum v. Streeter, 5 Jones (H. C.) L. 70. 6 Furlong v Stone, 12 R. I. 437. In Bishop ii. Little, 3 Me. 405, a similar doc- trine was held where the plaintiff pur- chased certain lands which were claimed by certain proprietors for whom the de- fendant acted or assumed to act as agent, and paid to him the purchase-money and took a deed under an assurance of the de- fendant that the title of the defendants extended to and included the land within six years before the commencement of the action ; but more than six years after the delivery of the deed and payment of the money it was discovered that the title of the proprietors did not cover the land in question. The court held that the stat- ute began to run against the plaintiff's claim to recover back the purchase-money, if he ever had any, such claim, from the time when the money was paid .ind the deed delivered, and not from the time when the defect in the title was discovered, there being no fraudulent concealment on the defendant's part. " Molton V. Henderson, 62 Ala. 426. In this case it was held that whera the legal title to land resides in trustees or the survivors of them, and such lands are sdld under void proceedings by a guardian of the cestui que trust, and the purchaser goes into possession, the statute of limita- tions begins to run from the date of such sale and possession under it, and is not suspended by the death of the trustee after such possession accrued. Mixler v. Sul- livan, 4 Den. (U. S. C. C. ) 340. See also Edge V. Edge, 62 Ga. 289, where an ad- ministrator and another person bought land of the estate, and the administrator settled with the distributees therefor ; in an action by him against his co-purchaser for his share of the purchase-money, it was held that the statute began to run from the date of tjie sale, and not from the ratification by the distributees. § 154.J MISCELLANEOUS CAUSES OP ACTION. 413 tract for the sale of lands, no time is fixed for a conveyance, the statute does not begin to run against the purchaser, as to the money paid, until he has demanded a deed or the other partj- has died,^ the rule being that the statute does not begin to run against a person who has paid monej' under a voidable contract until some act has been done by the other part3-, or b3' the person paying the money, evincing an intention to rescind the contract* Sec. 1.54. Sheriffs, Actions against, for Breach of Duty. — The stat- ute does not begin to run against a sherifi" for moneys collected on an execution until a demand has been made upon him therefor, or until he has made a proper return of the execution as required by law,' or, if no return has been made, until the lapse of the time within which, bj- law, the return is required to be made. But in Georgia it has been held that the statute begins to run from the time the money was received.* But this doctiine can hardly be regarded as well founded, because the sheriff has the whole period fixed by law within which to make his return, and until that time has elapsed the creditor has no means of knowing whether the sheriff intends to pay over to him the money collected, or not ; nor, until the return-day has passed, can 'he maintain an action against him either for not collecting, or for refusing to pay over the money when collected. In Louisiana it is held that the statute does not begin to run in such cases until the judgment creditor has demanded the money .^ For money collected by a sheriff on foreclosure proceed- ings, the statute does not begin to run until the sale is perfected by a delivery of the deed.' For not returning an execution on time, the statute begins to run the moment the time for returning expires, with- out demand or notice.' The cause of action against a sheriff for dam- ages occasioned by his unauthorized release of property attached on mesne process does not arise from the date of the release, but from the date of the judgment, and the statute begins to run from that time.' In 1 Eames v. Savage, anU. equity of redemption upon execution, and 2 Collins V. Thayer, 74 111. 138. holds the surplus, upon a second attach- » Governor v. Stonum, II Ala. 679 ; ment, which has since failed, is not liable State V. Minor, 44 Mo. 373. Where an to the judgment debtor for such surplus officer receives from an execution debtor a until he has received notice of the disso- note in satisfaction thereof, payable to lution of the second attachment ; conse- himaelf, the statute does not begin to run quentJy the statute does not begin to run against the judgment creditor's right to in hia favor until such notice is given, recover of him the proceeds of such note. King v. Rice, 12 Gush. (Mass.) 161. until the creditor has made a demand upon * Thompson v. Central Bank, 9 Ga. the officer therefor, especially where the 413; Edwards v. Ingraham, 81 Miss. 272. note remained uncollected until a short » Fuqua v. Young, 14 La. An. 216. time before demand. Ghilds v. Jordan, » Van Nest i». Lott, 16 Abb. Pr. (N. Y. ) 106 Mass. 321, and the same rule prevails 130. as to money collected on an execution by ' Peck v. Hurlburt, 46 Barb. (N. Y.) an officer. Weston v. Ames, 10 Met. 559. (Mass.) 244. An officer who sells an ' Lessem ». Neal, 63 Mo. 412. 414 STATUTES OF LIMITATION. [chap. XIII. an action against a sheriff for an escape, the statute begins to run from the time of the escape.' For making an insufficient return on mesne process, by reason of which the plaintiff lost the benefit of the attach- ment, the statute begins to run from the time the writ was returned to the proper officer, and not from the time when the damage therefrom accrued ; ''■ and this is also the rule where he attaches insufficient prop- ertj' on the original writ, when he was directed to, and might have attached sufficient.' But for taking insufficient bail it is held that the 1 Rosborough v. Albright, 4 Rich'. (S. C.) 39; West v. Bice, 9 Met. (Mass.) 564; French v. O'Niel, 2 H. & M. (Md.) 401; Cookram v. Welby, 2 Mod. 222. 2 Miller v. Adams, 16 Mass. 456 ; Caesav v. Bradford, 13 id. 169. But in Bank of Hartford County v. Waterman, 26 Conn. 324, it was held, in a case where an officer made a false return, that the statute did not begin to run until the plaintiff had sustained actual damage therefrom. But Ellsworth, J., dissented from this doctrine, and maintains his position in a very .strong and able dissenting opinion. Newell V. Whigham, 102 N. Y. 20. A sheriffs return to a writ of possession is not conclusive as to the execution of the writ. As against a mortgagee of a leasehold interest, who is not in possession of the de- mised premises,, to set the six months' statute of limitations running, and to cut off his right to redeem, the execution of a ■writ of possession, issued in an action of ejectment brought by the landlord because of non-payment of rent, must be an open, visible, and notorious change of possession; a mere nominal and secret execution of the writ is not sufiBcient. In an action to foreclose a mortgage upon a leasehold interest, in which the as- signee of the landlord defended on the ground that the mortgage had been cut off by the execution of a writ of possession in an action of ejectment brought by the land- lord for non-payment of rent, and by a failure of the mortgagee to redeem within six months, it appeared that the deputy of the sheriff, to wnom tho writ was issued, went upon the premises and notified W., the assignee of the lease, who was in pos- session, of his business ; he did not go into the house upon the premises; W.'s family were there at the time, and remained there, and he continued in actual occupation thereafter. It did not appear that any person was put in charge or possession on the part of the plaintiff in the ejectment suit, or that W., or any person on the premises, attorned to the plaintiff or to any one in his behalf, or undertook to hold for or under him. The sheriff made return that he had executed the writ by deliver- ing possession to the plaintiff in the eject- ment suit. Held, the evidence did not justify a finding that the writ was executed. Witbeck v. Van Rensselaer, 64 N. Y. 27, distinguished. The complaint set forth the recovery of judgment in the ejectment suit, and al- leged a tender and payment into com-t of the amount of rent in arrear, with the costs and charges to which the plaintiff in that action was entitled ; also that the plaintiff here was ready and willing to pay said rent and charges. It was claimed by the defendants that no effort to redeem was ef- fectual, as the amount tendered was insuffi- cient, and that, therefore, the complaint was properly dismissed. Held, untenable, that as the statutory limitation as to time to redeem had not expired at the time of trial, the insufficiency of amount tendered did not authorize a dismissal of the com- plaint; that as the complaint contained an offer to pay all the back rents, costs, and charges, the court could have required the payment of the proper amount as a con- dition of granting relief. » Betts V. Norris, 21 Me. 314. The doctrine of this case has been denied in a Connecticut case. Bank of Hartford County V. Waterman, 26 Conn. 324, the facts in which, as well as the opinion of the court, are given elsewhere ; but the courts of Maine adhere to the doctrine of the prin- § 155.] MISCELLANEOUS CAUSES OP ACTION. 415 statute does not begin to run until a return of non est inventus has been made on the execution. The distinction being that the persons becom- ing bail only guarantee that the debtor shall be forthcoming to respond to the execution, and do not become liable to pay the debt except upon failure in that respect, consequently no right of action exists in favor of the creditor until it is ascertained that the debtor is not forthcoming upon the execution ; ' and the same rule prevails in actions for taking insufficient receiptors for property attached or sureties in replevin suits. ^ For a failure by a sheriff to return goods attached on mesne process to the debtor, after the plaintiff in such process has been defeated, the stat- ute does not begin to run until the attachment is dissolved bj- the act of the plaintiff therein or by operation of law.^ Sec. 155. Fraudulent Representations in Sales of Property. — In an action to recover damages for fraudulent representations made in the sale of lands, in regard to incumbrances, the cause of action arises at once upon the completion of the sale bj' a convej-ance of the land.* In such cases, the fact that the grantee did not discover the fraud until six years after the conveyance is of no consequence, as it is the misrep- resentation and not the resulting damage which constitutes the ground of action ; and, as the fraud might have been discovered by an exami- nation of the proper records, the fault is the grantee's, if he has failed to use that diligence which common prudence suggests in ascertaining the truth. The distinction between that class of cases where the fraud ought to have been known to a person, and one where ordinary dili- gence would not necessarily have discovered it, is well exemplified in the case cited supra. There is also a wide distinction between a case where the action is predicated upon the fraud of a partj- in the sale of propert}-, or where he has fraudulently thrown a person off his guard, and prevented such an investigation as would have revealed the truth, and one which is predicated upon a breach of contract of warrant}', however false the warranty may be. In the former case the statute would not begin to run until the fraud was, or reasonably could have been, discovered ; while in the latter case the statute begins to run at once, although there cipal case. Garlin v. Strickland, 27 Me. begins to run from the time when the writ 143_ was returned. Miller v. Adams, 16 Mass. 1 West V. Bice, 9 Met. (Mass.) 564 ; 456. Bice V. Hosmer, 12 Mass. 127 ; Caesar v. ^ Harriman v. WUkins, 20 Me. 98. Bradford, 13 id. 169 ; Mather v. Green, ' Bailey v. Hall, 16 Me. 408. 17 id. 60. An action against a sheriff for * Northrop v. Hill, 61 Baib. (N. Y.) taking insufficient bail accrues from the 136. In Owen v. Western Savings Fund, 97 rime of the return of non est inventus on Penn. St. 47, it was held that the statute the execution against the principal, and begins to run against a recorder of deeds the statute runs from that time. Bice v. for a false certificate of search from the Hosmer, 12 Mass, 127 ; West v. Bice, 9 time when the search was given, and not Met. (Mass.) 564; Mather «. Green, 17 from the time when damage was sus- Mass. 60. And an action against him for tained. an insufficient return on an original writ 416 STATUTES OF LIMITATION. [CHAP. XIII. was no means by which the vendee could have ascertained the falsity of the waranty. Thus, in a New York case'' it appeared that the defend- ant was engaged in the business of raising fruit-trees for sale, and in the spring of 1864 sold the plaintiff one hundred young trees, which he represented to be twent^'-ounce apple-trees, which was the kind of trees the plaintiff wanted. The trees were taken and set out by the plaintiff on his farm, and did not bear fruit until the fall of 1870, when it was for the first time possible to discover the truth of the warranty. It was then found that the trees were not twenty-ounce apple-trees, but rather trees producing a very inferior kind of apple. The plaintiff then brought an action against the defendant for a breach of the implied warranty, and the statute of limitations having been pleaded, the prin- cipal question was whether the statute began to run from the date of sale, or from the time when the plaintiff first discovered that the treea were not of the kind which they were represented to be. The court held that, as there was a breach of the contract as soon as the sale was completed, the statute began to run from that date, and consequently that the action was barred. " I am of the opinion," said Mullin, P. J., " that there was a warranty by the defendant, either that the trees sold the plaintiff were twenty-ounce trees, or that they would bear twenty- ounce apples. If the former was the warranty, the right of action accrued immediately. If the latter, the right of action did not accrue until 1870, and was not barred. . . . When the defendant delivered to the plaintiff the one hundred trees, he declared them as being twenty- ounce apple-trees at the time of the sale. The meaning, doubtless, was, that they would bear twentj--ounce apples. And a warranty that they would bear that species of apples would be prospective in its operation ; the other was to the then present description of the trees. If the trees were not the kind represented, the warranty would be broken in the one case as soon as made in the other, not until they bore fruit of a differ- ent kind. The latter form of warranty would not be as a warranty that the trees would bear fruit ; but that, if they did bear, they would be of the species known as twenty-ounce apples. It seems to me we must hold the warranty to be as to the species of the trees at the time of the sale, and that a cause of action then accrued, and is of course barred. There is apparent injustice in requiring a plaintiff to bring an action before it wais in his power to show that he had been damnified. This result might have been avoided by requiring a warranty that the trees would bear the kind of fruit wanted. " Inability to ascertain the quality or condition of property warranted to be, at the time of sale, a particular quality or in a certain condition, has never been allowed to change the rule as to the time when a right of action for a breach of warranty occurs." " 1 Allen V. Ladd, 6 Latos. (N. Y.) 111. Troop v. Smith, 2 Johns. (N. Y.) 33 ; 2 Bartly v. Faulkner, 3 B. & Aid. 288 ; Leonard v. Putney, 6 Wend. (N. Y.) 30 ; § 159.] MISCELLANEOUS CAUSES OP ACTION. 417 Sec. 156. When Leave of Court to sue is necessary. Effect of, on Commencement of Limitation. — When an action cannot be brought until leave to sue is granted by a court, especially when this prelimi- nary is imposed by statute, the statute of limitations does not begin to run upon the cause of action until such leave has been granted ; * al- though, if a partj- has slept upon his rights unreasonablj', and has neglected to make application to the court for leave to sue for such a period of time that his demand may fairly be regarded as stale, it would seem to furnish ample ground for a refusal by the court of the necessary leave to use its process to enforce the claim. It would be exceedingly unreasonable to hold that the statute runs upon a claim when the party has no power to maintain a suit thereon, and although, formerly perhaps a contrary rule would have been held, yet, according: to the tendency of the courts at the present time, there can be no ques- tion that the Minnesota case expresses the true rule. Sec. 157. Orders of Court. — The statute ordinarily begins to run, against an order of a court from the time when it is made, but when; such order partakes of the nature of an interlocutory decree, the stat- ute does not begin to run against it until the proceedings are at an end. Especially is this the case in relation to orders of probate courts, made during the progress of administration, upon which it. is held that the statute does not begin to run until the time of final .settlement." Sec. 158. Property obtained by Fraud, — When property is ob- tained by fraud, so that a present right of action arises either for the tort or for the value of the property under an implied contract, the stat- ute begins to run from the time when the fraud was, or by the exercise of reasonable diligence might have been, discovered ; and even though., the statute may have run against the tort, yet an action upon the im- plied contract may be maintained, unless the statute has also run upon it. Thus, where the maker of an overdue note induced the payee tO' surrender it to him without payment, by fraud, it was held equivalent to obtaining so much money, and that the creditor night waive the tort and maintain an action for money had and received, and that the stat- ute did not begin to run until the fraud was actually discovered, or the- lapse of a reasonable time within which the plaintiff should have dis- covered it.' Sec. 159. Promise to marry. — A promise to marry, especially where the parties thereto, through a period of several years, do no act to indi- cate an intention or purpose not to fulfil it, is treated as a continuous promise, and the statute does not begin to run thereon until there is a breach thereof, either by one of the parties having put it out of his or Argoll V. Bryant, 1 Sandf. (S. Y. S. C.) ' Tindall v. McMillen, 33 Tex. 484. 98; Allen v. Miller, 17 "Wend. (N. Y.) ^ Penobsoot R. R. Co.' v. Mayo, 67 202. Me. 470. See also Outhouse v. Outhouse, 1 "Wood V. Myrick, 16 Minn. 494. 13 Hun (N. Y.), 180. VOL. I. — 27 418 STATUTES OP LIMITATION. [CHAP. XIII, her power to perform it by marrying another person, or by notice of a purpose not to perform it, or an absolute refusal to perform it.^ That is, the party setting up the statute as a defence to an action upon such a contract must, in order to avail himself of its protection, show that the contract was broken by him in such a manner that a present right of action against him thereon has existed for the whole period requisite to establish the statutorj^ bar.'' Sec. 160. Contracts void under Statute of Frauds, Actions for Money paid under. — Where money has been paid under a contract that is void under the statute of frauds, because not in writing, the statute does not begin to run upon an action to recover it back from the time when it was paid, but rather from the time when the other party has done some decisive act evincing an intention to rescind the contract.' Until that time, no right of action exists ; and, as the statute does not attach until a full, complete, and present right of action exists, it fol- lows, of course, that the statute does not begin to run until such right arises, by a refusal of the party to perform the contract under which the money was paid.* Sec. 161. Against Heirs, when Tenancy by Curtesy or Dovirer exists. — The statute does not begin to run against the heirs of a mar- ried woman whose husband survives her, and is entitled to an estate in her lands as tenant by curtesj', until his estate is terminated therein ; ^ and the same rule prevails where there is a tenancy by dower in a hus- band's lands, the rule being that the statute does not begin to run against a person entitled to an estate in remainder until he or she has a right of possession. ° Sec. 162. Actions against Sureties on Administrator's Bonds. — Ordinarily the statute will not begin to run in favor of the sureties on an administrator's bond, by a distributee of the estate, until his adminis- tration is closed ; but as his death, before the estate is settled, deter- mines his trust, the statute begins to run against the distributefes in favor of the sureties, from the date of his death.' In Maryland, under the statute of 1789 the statute of limitations begins to run on a guar- dian's bond from the time it was passed.* Sec. 163. Actions against Guardians by Wards. — An action by a ward against a guardian for a settlement does not accrue until the rela- tion is terminated ; ° but if a female ward marries, before she becomes of 1 Blackburn v. Mann, 85 111. 222. 8 state v. Miller, 8 Gill (Md.), 335. ^ ^^- » Alstons. Alston, 43 Ala.l5 ; Coplinger " Collins V. Thayer, 74 111. 138. D.Stokea, Meigs (Tenn.), 175. InLouisiana, * Cairo, &c. R. B. Co. v. Parks, 33 Ark. the action of a minor against his tutor, re- ^ • speoting the acts of his tutorship, is pre- Dyer v. Brannook, 66 Mo. 891. scribed by four years from the time he be- « Bailey v. Woodbury, 60 Vt. 166. comes of age, and the tacit mortgage given ■> Harrison v. Heflin, 54 Ala. 552 ; Bid- him by law against the property of the tutor die V. Wendell, 37 Mich. 452. is extinguished at the same time. AUiotv. § 16^0 MISCELLANEOUS CATTSES OF ACTION. 419 age, with an adult husband capable of suing to enforce her rights, the relation ceases, and the statute begins to run from the date of the mar- riage.-' A right of action does not accrue to a guardian to recover of his ward for expenses incurred, until the termination of the guardian- ship ; and the rule is not changed, or his rights in this respect affected, by the circumstance that the ward removes to another State before he becomes of age.^ When a guardian is removed from his trust, and, subsequently thereto, sales made by him are set aside, and he is com- pelled to refund the money received therefrom, the statute begins to run from the time the sales are set aside and the money refunded, and not from the time of settling his guardianship account.^ Sec. 164. Assessments, Taxes, &o. — Where an assessment or tax is laid, and b3' ordinance or statute a certain time i« fixed within which it may be paid, the person against whom it is laid has the whole of such period within which to pay it, and the statute does not begin to run thereon until such time has expired. Thus, where an assessment was imposed by an ordinance which provided that, unless paid within twenty days, the debtor should be subjected to penalty and interest, it was hel9 that the statute began to run from the expiration of the twenty days ; * and the same rule applies in the case of taxes. If the Aubert, 20 La. An. 509. If a person, with- out legal authority to do so, assumes to act as guardian for another, and as such receives money belonging to the ward, the statute begins to run against him at once, unless there is some existing disability. Johnson v. Smith, 27 Mo. 591. 1 Finnelli). O'Neal, 13 Bush (Ky.), 176. 2 Taylor v. Kilgore, 33 Ala. 214. ' Shearman v. Akins, 4 Pick. (Mass.) 283. In Henderson v. Henderson, 54 IJd. 332, it was held that the statute be- gins to run upon a guardian's bond imme- diately upon the ward becoming of age. " From the moment the ward is emanci- pated from the authority of his guardian, by reaching the age prescribed by law, his cause of action is complete, and the statute of limitations begins to run." Dorset, J., in Green v. Johnson, 3 G. & J. (Md.) 87. See also Munroe v. Phillips, 65 Ga. 396. In Henderson v. Henderson, ante, Irving, J., in remarking upon the provision of the code providing that "on the ward's arri- val at age " the guardian shall pass his account and pay over the moneys in his hand, says, " So long as he (the guardian) delayed, it was not a new breach, but a continuing default and a continuing breach." From the doctrine advanced by the court, Alvey, J. , dissented, and very ably combated the view that the statute begins to run instanter upon the ward be- coming of age, and insisted that the statute did not begin to run until the balance due had been ascertained by a settlement of his accounts in the Orphan's Court; citing Thurston v. Blackiston, 35 lid. 501 ; Byrd v. Stewart, 44 id. 492; Griffith v. Park, 32 id. 1, 8; Sanders v. Coward, 15 M. & W. 48. * Reynolds v. Green, 27 Ohio St. 416.- In White v. City of Brooklyn, 122 N. Y. 53, the plaintifiF had certain certificates of sale, issued by the collector of taxes and assessments in the city of Brooklyn, on sales of land made in and prior to 1864, for unpaid taxes and assessments. Each certificate contained a statement that the purchaser was entitled, after the expiration of two years from its date, to a lease of the premises sold, unless redeemed or an ir- regularity should be discovered in the pro- ceedings prior to the sale, in which case it was agreed that the purchase price should be refunded to the purchaser or assigns upon surrender of the certificate. No re- demptions and conveyances in pursuance of the certificates were ever made. Certain of the certificates the plaintiffs claimed to 420 STATUTES OF LIMITATION. [chap. XIII. Statute or the note under which it was raised specifies a certain time within which it shall be paid, the taxpayer has the whole of that period own as assignees of the purchasers. The only levidence of the assignment of three of the certificates was by the indorsement of the purchaser's name ou the certificate. No notice of any assignment had been filed as required by statute, whichprovides that " no assignment of any certificate given on the sale of lands for any taxes or assess- ments, shall have any eflfeot until notice of the same, with the name and residence of the assignee, shall be iiled in the office of the collector of taxes and assessments in the district in which said lands are situ- ated." In December, 1882, irregularities were discovered in the proceedings prior to the sales, which rendered them invalid. In July, 1883, the plaintiffs demanded re- payment of the purchase-moneys, which was refused. . In an action to recover the same brought thereafter, the court below held that the action was barred by the statute of limitations. It was held error; that the contracts on the part of the city embodied in the certificates continued ef- fectual and unperformed until the discovery of the irregularities in the proceedings, and the plaintiffs' right to the repayment of the purchase-moneys then arose ; and that plaintiffs were not entitled to recover in- terest prior to the time demand of payment was made, nor to recover anything by way of indemnity for costs incurred by them in defending an action in which was in- volved the validity of the certificates as liens. Also, that while the defendant might, for the purpose of performance of the con- tracts contained in the certificates, have treated the purchasers, as the parties en- titled to the benefit of them until notice was filed, the provision was no defence in this action, as an assignment of the certifi- cates would be in practical effect an assign- ment of the claims against the city for reinbursement; but that the certificates were not negotiable instruments transfer- able simply by indorsement; and that the indorsements alone were Insufiicient evi- dence to establish title in plaintiffs to the three certificates. In Reid v. Board of Supervisors of Albany Co., 128 N. Y. 364, reversing 60 Hun, 215, it was held, that under the pro- visions of the act providing ' ' for the assess- ment and collection of taxes in the city of Albany " which, in case a purchaser at a tax sale shall be unable to recover possession of the real estate because of error or irregu- larity in the proceedings for the levying or collection, requires the Board of Supervisors of the county to reimburse the purchase- money, and upon the refusal or neglect to do so, authorizes the recovery of the money in an action against the Board, when, in consequence of some defect in the proceed- ing, a sale is invalid, and because thereof the purchaser is unable to recover posses- sion, he is at once entitled to reimburse- ment, and his cause of action is barred, if suit is not brought in six years from the time when the right to make a demand for reimbursement was complete. In an action under said provision to recover back the purchase-money paid on various tax sales, all of which were made in and prior to 1883, and more than seven years before the commencement of the ac- tion, it was not alleged in the complaint, or shown upon the trial, that any legal proceeding had been instituted by the pur- chaser, or his successor in interest, to re- cover possession of the land, or that he had made any effort to obtain possession, but it was admitted that by a decision of this court, Remsen v. Wheeler, 10.5 N. Y. 573, rendered four years after the sale in an action between other parties, sales under similar proceedings in another locality were adjudged illegal and void. The court be- low decided that neither the purchaser nor plaintiff, his successor in interest, was en- titled to bring an action for reimburse- ment until such decision, and so that the action was not barred by the statute. Held, error ; that the decision had no effect upon and in no way changed the rights, duties, or obligations of the par- ties here, but was simply an authority as to the law ; and said provision requires that before a recovery can be had in snch an action, plaintiff must show an effort on the part of the purchaser to obtain posses- sion under the tax sale, and that he was unable to do so because of its invalidity; § 165.] MISCELLANEOUS CAUSES OP ACTION. 421 to pay it in, and the statute does not begin to run until such period has elapsed. Sec. 165. Agreement to pay Incumbrances. — Where the grantee of land assumes and agrees to pay certain incumbrances on the land, and no time is fixed within which he shall pay them, he is treated as contracting to pay them as they mature ; and in such a case, where the incumbrances at the time the deed is delivered have not matured, the statute would not begin to run upon his contract until such incumbrances became due ; but if they are due at the time the contract is made, the statute begins to run in his favor from the time when he accepted the it is not sufficient to show merely that the sale was illegal. The purchaser is not bound to bring an action, or to institute a proceeding, such as is authorized by the act ; if he demand possession of the occupant or owner, and this is refused on the ground of invalidity of the sale, he then may make his demand for reimburseinent ; in which case, how- ever, he assumes the burden of establish- ing the invalidity of the sale ; and the purchaser must act within a reasonable time after he obtains his certificate ; that in case he- institutes legal proceedings and conducts them to a determination with reasonable diligence, the statute will begin to run from such termination ; and that if he relies upon a demand of possession, and this is shown to have been made within a reasonable time, the statute will begin to run from that time. The question as to what is a reasonable time, is one of law. The amendment of said provision made by the act of 1889, which requires the reimbursement to be made "within six years from such sale," is prospective in its character, and so has no effect upon prior sales; said amendment did not repeal the limitations of the code, but left them to apply to the past and simply made a new rule for future cases. The legislature might have made the amendment retroactive in its character, provided a reasonable time was given to the purchaser to claim and enforce reim- bursement after the amendment took effect. In re Duffy, 133 N. Y. 512. A petition was brought to vacate an as- sessment for a local improvement, in the city of New York, was served upon the corporation counsel in April, 1872, with a notice attached that it would be presented to the court on the twenty-sixth of that month. The motion was not then made. In November, 1890, another notice of appli- cation to vacate the assessment was served. It was held, that this was a new and inde- pendent proceeding, in no way connected with the first, and that it was barred by the statute of limitations. In re Eosenbaum, 119 N. Y. 24, dis- tinguished. In People ex rel. v. 'Wemple, 133 N. Y. 617, it was held that there is no limitation as to the time in which a corporation may apply to the comptroller for a revision of a tax levied upon it, under the provision of the act providing for the taxation of certain corporations as amended in 1889, which authorizes that officer to revise and readjust tax accounts against corporations theretofore settled. No power is conferred upon the comp- troller by said provision, or upon the court in reviewing his decision as authorized by it to direct the refunding of any tax paid into the State treasury pursuant to the act. All that the comptroller may do is to set- tle the account and charge or credit to the corporation, as the case may require, the difference, if any, resulting from the revi- sion, " upon the current account." Upon review by the court it may give no judg- ment that the comptroller might not have given. It seems that in case the corporation is not liable to taxation, and so has no ac- count with the comptroller, it is for the legislature to carry out the decision of the comptroller or the court by making an ap- propriation to refund the illegal tax. 422 STATUTES OF LIMITATION. [CHAP. XIII. deed.^ Where, however, the grantor is to paj' the incumbrances, the statute does not begin to run against the grantee's right to .recover bacli his purchase-money, &c., until he has been evicted in consequence of the non-payment of the incumbrances b^- the grantor.'^ Sec. 166. General Provisions. — In manj' of the statutes, after spe- cificallj' providing for certain classes of actions, there is a general pro- vision, by which it is provided that all causes of action not limited by any previous sections of the statute shall be brought within a certain period. Thus, in Maine,' it is provided that " all personal actions on anj' contract, not limited by the foregoing sections, or any other law of the State, shall be brought within twenty j^ears after the accruing of the cause of action ; " and a similar provision exists in Massachusetts,^ Michigan,^ and Wisconsin.^ In Oliio,' it is provided that all other actions not enumerated in the statute shall be brought within four years after such right of action accrued. This clause is sweeping, and embraces every species of action, whether upon a contract, bond, deed, or other obligation, or for any act, wrong, or injury not specially provided for. In Oregon, an equally sweeping clause exists, which limits non-enumer- ated causes of action to ten years ; ^ so also in Nevada ' and Nebraska," the limitation being four years. Sec. 167. For Advances upon Property. — Where money is advanced upon property in store, the property is treated as the primary fund for the repayment of the advances ; and, as an action for the money can only be brought when the consignee can no longer look to the propertj' for reimbursement, it follows as a matter of course that the running of the statute dates from the same period. ^^ Sec. 168. Usurious Interest. — Where a contract is usurious, and' the usurious interest is paid in advance at the time when the contract is made, the statute begins to run against the person paying it, and against the State, where it is made an indictable offence at once, and does not rest in abeyance until the debt is paid ; ^^ but the rule as to an action to recover back the money would be otherwise where the usurious inter- est is not paid until the debt matures. In no event can a right of action accrue until the interest is paid. Sec. 169. Between Tenants in Common of Property. — Where property belonging to two persons is sold by one of them, the statute does not begin to run from the time of sale, but from the time when the pay therefor is received. Thus, in an action by one tenant in common against his co-tenant for the proceeds of trees sold by him, it was held that the statute began to run from the time of payment, not of sale ; 1 Sohumacker v. Sibert, 18 Kan. 104. ^ Sec. 1, suM. 6. 2 Taylor v. Barnes, 69 N". Y. 430. » Appendix, Oregon. ' Appendix, Maine. » Appendix, Nevada. * Appendix, Massacliusetts. w Appendix, Nebraska. ^ Appendix, Micliigan. n Grimes v. Hapgood, 27 Tex. 693. Appendix, Wisconsin. w Com. v. Frost, 5 Mass. 63. § 171.] MISCELLANEOUS CAUSES OF ACTION. 423 and that if a note was taken upon which the purchaser from time to time made payments, the statute begins to run from the date of each payment.^ Sec. 170. 'When the Law gives a Lien for Property sold. — In the case of a sale of property consisting of several parcels, under a special conti-act, where the law gives a lien therefor, as in the case of a sale of goods to a vessel, the lien attaches on the day of the delivery of the first parcel, but the statute does not begin to run until the day after the delivery of the last pa,rcel.^ Of course, if a term of credit is agreed upon, the statute does not attach until the credit has fully expired. Sec. 171. Co-purchasers, Co-sureties, &c. — Where one of two or more persons who have become jointly liable under a contract or obli- gation, whether partners or not, pays the whole or a portion of the debt, the statute attaches from the time of each payment by him ; ° but this rule is, of course, subject to the exception, that, if the payment is made before the debt becomes due, the statute will not apply until its matur- itj'. It has been held that, even where the liability of one joint maker of a note is barred by the statute, but has been kept or. foot as against the other by partial payments made by him, he may nevertheless recover of the other a moiety of the amount so paid by him, unless the statute has also run against such paj-ments ; * and this doctrine is well grounded in principle and sustained by authority,* the rule being that the statute only begins to run frpm the date of each payment." 1 Miller v. Miller, 7 Pick. (Mass.) 182; Brown w. Agnew, 6 "W. & S. (Penn.) 133. 235; Sherwood v. Dvmbar, 6 Cal. 53 j - The Mary Blane v. Bechler, 12 Mo. Lomax v. Pendleton, 3 Call (Va.), 542; 477 Buck V. Spofiford, 40 Me. 328; Regis v. 8 Campbell v. Calhoun, 1 Penn. 140. Herbert, 16 La. An. 224. * Peaslee v. Breed, 18 N. H. 489. " Bullock v. Campbell, 9 Gill (Md.), 6 Bullock V. CampbeU, 9 Gill (Md.), 182. 424 STATUTES OF LIMITATION. [CHAP, XIV. CHAPTEE XIV. Specialties. Sbo. 172. Sealed Instruments. 173. Covenants, Quiet Enjoyment, &c. 174. Covenants of Warranty, against Incumbrances, &o. Sec. 175. Bonds. 176. Eifeet of Acknowledgment- Payment on Specialties. of Sec. 172. Sealed Instruments. — In all those States where sealed instruments, or " specialties," as they are technically called, are expressly brought within the statute,^ the statute begins to run from the time when a cause of action arises thereon, and the bar is complete at the expiration of the statutory period, while in those States where this class of instruments are not provided for, the common-law presumption of payment attaches from the time when a cause of action arises, and be- comes complete as a presumptive bar at the expiration of twenty years from that time ; ^ and the mere lapse of twenty years without any de- mand, of itself raises a presumption of payment.' The statement of the 1 See ante, pp. 64-78, for instances in wliieh such statutes have heen adopted in different States. 2 Bass /!>. "Williams, 8 Pick. (Mass.) 187 ; Jackson «. Sackett, 7 Wend. (N. Y.) 94 ; Oswald v. Leigh, 1 T. R. 271. 8 Wannamaker v. Van Buskirk, 1 N. Y. Eq. 685 ; Mease v. Smith, 1 N. J. L. 443 ; Evans v. Huffman, 5 N. J. Eq. 354 ; Moore b. Smith, 81 Penn. St. 182 ; Hen- derson 0. Lewis, 9 S. & R. (Penn.) 379. But in Vermont, where, by statute, the prescriptive period is fifteen years, such a presumption is raised from the lapse of that period. Whitney ». French, 25 Vt. 663. In Oswald v. Leigh, anU, a bond given in 1765 was sued in 1784, nineteen years and a half after it was given, and, as both parties resided in Great Britain and were men of means, it was insisted that the lapse of this period of time without de- mand raised a presumption of payment, and the cases of Rowley v. Tompkins, tried in 1766 ; Welden v. Davis, tried in 1760 ; and Moyle v. Roberts, all manuscript cases. — were cited in support of this position ; but BuLLER, J., having instructed the jury in favor of the plaintiff, upon a rule to show cause obtained by the defendant, said ; " I have always been of opinion that no less time than twenty years could of itself form a presumption that a bond tiad been paid, and, as there was no evidence at the trial in aid of the presumption, I left the question to the jury with strong direc- tions in favor of the plaintiff; for, even with regard to the rule of twenty years, where no demand has been made during that time, that is only a circumstance for the jury to found presumption upon, and is in itself no legal bar. In those cases where satisfaction of a bond has been pre- sumed within a less period, some other evidence has been given in favor of such a presumption ; such as having settled an account in the intermediate time, without any notice having been taken of such a demand. "It is manifest that this doctrine of twenty years' presumption was first taken § 172.] SPECIALTIES. 425 law by BuLLEE, J., in the case last cited, is generally- adopted in this country ; and mere lapse of time less than twenty years does not afford up by Lord Hale, who only thought it a circumstance from which a jury might presume payment. In this he was fol- lowed hy Lord Holt, who held, that if a bond be of twenty years' standing, and no demand proved thereon, or good cause of so long forbearance shown on solvit ad diem, he should intend it paid. 6 Mod. 22. This doctrine was afterwards adopted by Lord Raymond in the case of Constable v. Somerset, HU. 1 Geo. II. at GuildhaU. That was debt upon bond, where the defendant, an executor, craved oyer of the bond, and of the condition, which appeared to be for the payment of so much money, six months after the death of the defendsint's testator. The defendant in his plea averred that the testator died on the 15th March, 1711, and that he had paid the said sum on the 16th March, 1711, within six months after the testator's death, and thereupon issue was joined. The defendant relied on the ground that, as he, after the death of the testator, his father, had an estate in the plaintiff's neighborhood, and was constant and regu- lar in all his payments, it should be pre- sumed that the money was paid to the plaintiff. In answer to this objection, evidence was given of a demand of the money on the defendant himself in 1725 ; and the Chief Justice said, that the pre- sumption of money having been paid which was due on bond, if it were put in suit after twenty years' standing, was not the old but a new doctrine, which had been introduced in Lord Hale's time, and that he would never suffer a plaintiff to be stripped of a jnst debt by such a presump- tion as was then contended for. " This opinion seems to fortify the idea which I took up at the trial, in answer to a dictum which was then cited (1 Burr. 424), that the question of presumption of payment within a less time than twenty years had been left to a jury, which was that it must have been left to them upon some evidence ; and in such case the slight- est evidence is sufficient. In one of the Winchelsea cases (4 Burr. 1963), Lord Mansfield expressly said, that, if a bond had lain dormant for twenty years, it shall be presumed to be paid. The court, how- ever, inclining to believe the real truth of the case was with the defendant, desired that he would make an affidavit ; which being read upon a subsequent day, sad. not proving satisfactory, they discharged the rule. And Lord Mansfield, C. J., said that there was a distinction between length of time as a bar, and where it was only evi- dence of it : the former was positive, the latter, only presumptive ; and he believed that in the case of a bond no positive time had been expressly laid down by the court ; that it might be eighteen or nine- teen years." But in this country it is generally held that no period short of twenty years will raise a presumption of payment of a bond, Clark V. Bogardus, 2 Edw. (N. Y.) Ch. 387 ; or of a mortgage, Doe v. Grafton Bank, 19 Vt. 463 ; Meyer v. Pruger, 7 Paige (N. Y.) Ch. 465 ; Ingraham v. Baldwin, 9 N. Y. 45 ; or a covenant of any kind, Johnson v. Stockton, 6 B. Mon. (Ky. ) 408. Eighteen years and a half has been held not sufficient as to a bond. Baltz V. Bullman, 1 Yeates (Penn.), 584 ; Lesley ». Nones, 7 S. & E. (Perm.) 410 ; Hughes V. Hughes, 54 Penn. St. 240. Such a presumption may, in connection with other circumstances, be raised by the lapse of a less period, Moore r. Smith, 81 Penn. St. 182 ; Henderson v. Lewis, 9 S. & E. (Penn.) 379 ; but to have that effect it must be aided by persuasive circum- stances, Hughes V. Hughes, ante. Courts of equity act in analogy to the statute of limitations ; and if, in a suit for the foreclosure of a mortgage, the lapse of time be such that the orator could not maintain a suit at law for the recovery of the mortgaged premises, a court of equity would presume payment and satisfaction of the mortgage debt. This period is fixed, by statute, in Vermont, at fifteen years. Martin v. Bowker, 19 Vt. 526. See also McDonald v. Sims, 3 Kelly (Ga.), 383 ; Field u. Wilson, 6 B. Mon. (Ky.) 479. But the payment of interest upon the debt, by the defendant, or of any portion of the principal, or any other act recognizing the existence of the mortgage, and that it was unsatisfied and obligatory 426 STATUTES OF LIMITATION. [chap. XIV. any ground for a presumption of payment or satisfaction of a specialty', whether it be a bond,^ mortgage," judgment,' legacy/ notes under seal,^ or any instrument in the nature of a specialty," as recognizances, rent reserved in deeds,' or arrears of ground-rent, taxes on leased lands ; ' upon him, would be sufficient to repel the presumption of payment, and take the case out of the operation of the statute. Mar- tin V. Bowker, 19 Vt. 626. 1 Diamond v. Tobias, 12Penn. St. 312; Brubaker v. Taylor, 76 id. 83 ; Moore v. Smith, 81 id. 182 ; Clark v. Bogardus, 2 Edw. (N. Y.) Ch. 387 ; Miller v. Smith, 14 "Wend. (N. Y.) 425. That this pre- sumption does not avail in less than twen- ty years as to any specialty, see Meyer v. Pruyn, 7 Paige (N. Y.) Ch. 465, and this was held as to bonds. Clark v. Bogardus, 2 Edw. (N. Y.) Ch. 387. A lapse of eigh- teen years and a half was held not suffi- cient to raise a presumption that a bond was void, Baltz v. Bullman, 1 Yeates (Penn. ), 584 ; Hughes v. Hughes, 64 Penn. St. 240 ; Dehart v. Card, Add. (Penn.) 344 ; McCarthy v. Gordon, 4 Whart. (Penn. ) 321 ; Lesley v. Nones, 7 S. & E. (Penn. ) 410 ; nor will the lapse of any time, short of twenty years, per se raise such a pre- sumption. Henderson v. Lewis, 9 S. & E. (Penn.) 87. Twelve years was held in- sufficient. Kinna v. Smith, 3 N. J. Eq. 14 ; Eogers v. Burns, 27 Penn. St. 525. And this includes all species of bonds, official or otherwise, where the statute pro- vides no special period of limitation, Baok- entoss !). Cam, 8 Watts (Penn.), 286 ; Deimeru. Sechrist, 1 Polk (Penn.), 325 ; or recognizances, Ankeney v. Penrose, 18 Penn. St. 190; Darlington's Appropriation, 13 id. 430 ; Allen «. Sawyer, 2 P. & W. (Penn.) 325; Galbraith v. Galbraith, 6 Watts (Penn.), 112. 2 Flagg V. Euden, 1 Bradf. (N. Y. Surr.) 192; Bunder v. Snyder, 5 Barb. (N. Y.) 63 ; Eeynolds v. Green, 10 Mich. 355 ; Howland v. Shurtleff, 2 Met. (Mass.) 26 ; Martin v. Bowker, 19 Vt. 526 ; Hoff- man V. Harrington, 33 Mich. 392 ; Inches V. Leonard, 12 Mass. 379 ; Donald v. Sims, 3 Kelly (Ga.), 383 ; Cheever v. Perley, 11 Allen (Mass. ), 684 ; Bacon V. Mclntire, 8 Met. (Mass.) 87 ; Hughes B. Edwards, 9 Wheat. (U. S). 498 ; Peck v. Mallam, 10 N. Y. 509 ; Wilkinson v. Flowers, 37 Miss. 879 ; Newcomb v. St. Peter's Church, 2 Sandf. (N. Y.) Ch. 636 ; People V. Wood, 12 Johns. (N. Y. ) 242 ; CoUins V. Torrey, 7 id. 278; Field v. Wilson, 6 B. Mon. (Ky.) 479; Jack- son V. Wood, 12 Johns. (N. Y.) 242; Giles V. Barraore, 5 Johns. (N. Y.) Ch. 552 ; Cleaveland Ins. Co. v. Eeed, 24 How. (U. S.) 284 ; Downs v. Sooy, 28 N. J. Eq. 65 ; Green v. Frioker, 7 W. & S. (Penn.) 171 ; or any 'lien, Brock v. Savage, 31 Penn. St. 410. See Chap. XVIII. MOETGAGES. ' Miller v. Smith, ante ; Cope v. Hum- phreys, 14 S. & E. (Penn.) 15 ; Summer- ville V. Holliday, 1 Watts (Penn.), 507 ; Wills V. Gibson, 7 Penn. .St. 154 ; Denny V. Eddy, 22 Pick. (Mass.) 533. But the presumption does attach until the judg- ment is complete ; that is, until the amount is fixed, both debts anil costs. Wills v. Gibson, 7 Penn. St. 415. » Fouck v. Brown,' 2 Watts (Penn.), 209 ; Stralm's .Appeal, 23 Penn. St. 351 ; Kingman v. Kingman, 127 Mass. 249. ^ Rickert v. Gristwite, 1 Pittsb. (Penn.) 153. 6 Galbraith «. Galbraith, 6 Watts (Penn.), 112; Ankeney v. Penrose, 18 Penn. St. 190 ; Allen v. Sawyer, 2 P. & W. (Penn.) 325. ' McGuesney v. Heister, 33 Penn. St. 436 ; St. Mary's Church v. Miles, 1 Whart. (Penn.) 229 ; or rent reserved by deed. Barley w. Jackson, 16 Johns. (N. Y.) 210 ; Lyon v. Odell, 66 N. Y. 28. 8 McLaughlin v. Kain, 45 Penn. St. 113 ; Woodburn v. Farmers,' &c. Bank, 5 W. & S. (Penn.) 447. Municipal assess- ments are presumed to have been paid by lapse of twenty years. Ex parte Serrell, 9 Hun(N. Y.), 283 ; Fisher i>. New York, 6 id. 64 ; Expwrts Striker, 71 IS. Y. 603. Such assessments are treated as in the nature of judgments. Mayors. Colgate, 12 N. Y. 140. But in New York this spe- cies of assessments is confirmed by the courts, and for that reason properly par- take of the nature of judgments ; but when § I'i'S.] SPECIALTIES. 427 and that the consideration named in a deed as received has been paid.* And in a Pennsylvania case ^ where the parties had made a parol parti- tion of lands, with an agreement for an owelty of partition .ifter the lapse of twenty years, it was lield that payment of the same would be presumed ; and it may be stated as a general proposition that this pre- sumption attaches to every species of specialty claim. But it must be borne in mind that, unless the instrument or obligation creates a pres- ent right of action, the presumption, like the statute, only attaches from the time when the right of action accrued. But being a common-law presumption, even though it is also made so by statute, it may be set up by a defendant, whether he is a resident of the State in which the action is brought or not ; ^ the distinction being, that where the statutory presumption is relied upon it should be pleaded, while the common-law presumption is a mere matter of evidence, and may be urged at the trial without having been pleaded. There is still another distinction be- tween a presumption raised by the law and one that is prescribed by the statute ; and that is, that the latter is absolute, unless made otherwise in terms, while the former is dependent upon a variety of circumstances which (as we have seen) may entirely destroj' its force. In New York * the presumption ma}- be repelled by proof of paj-ment of some part, or by a written acknowledgment. In North Cai'olina,^ the presumption is reduced to ten j-ears, except as to mortgages, which is thirteen years, sub- ject to the same rules as exist at common law. In Arkansas ° similar provisions exist, except that payment of part, or a written acknowledg- ment, is necessarj- to remove the presumption ; so also in Missouri,' except that the period is twenty j-ears. In England, by Stat. 3 »& 4 Wm. IV. c. 42, specialties are brought within the statute, and are barred in ten years. Sec. 173. Covenants, Quiet Enjoyment, &c. — There is often a question as to covenants of a more or less continuous nature, such as covenants for title and quiet enjoyment, as to how far in those States where the statute embraces specialties thej* are within the statute. In an English case,' arising under the statute 3 & 4 "Wm. IV., the question was considered at some length by Kelly, C. B., and his observations are quoted here, as they may be of general use.' Thej' were as follows : " There is a distinction between the covenant for title and the covenant for quiet enjoj^ment. The covenant for title is broken by the existence ttey are not required to be so aflarmed, ^ See Appendix, they cannot in any sense be said to have ' See Appendix, any of the attributes of a judgment. * Speai- v. Green, L. E. 9 Ex. 99. 1 Pryor v. Wood, 31 Penn. St. 142. ^ i± ng. It should be observed, 2 Higgs V. Stimmel, 3 P. & W. (Penn.) however, that the judgment of the majority 115. of the court in the case was different from 8 Sanderson v. Olmstead, 4 Chand. that of the Chief Baeon, but principally (Wis. ) 190. upon different grounds. The facts of the * See Appendix. case sufBciently appear from the judgment. 5 See Appendix. Banning on Limitations, 177-187. 428 STATUTES OF LIMITATION. [chap. XIV. of an adverse title in another, as in this case, by a lease, its mere exist- ence rendering the land of less value.^ The covenant for quiet enjoy- ment is broken only when the covenantee is disturbed, as in this case by the entry into the mine and the taking the fragments of coal in 1848." ^ The rale may te said to be that if the grantor was not seised, the covenant of seisin is immediately broken. Greenby v, AVilcoks, 2 Johns. (N. Y.) 1 ; Bingham v. Wethcrwax, IN.Y. 509; Hamilton'!). Wil- son, 4 Johns. (N. Y.) 72; Grannisi). Clark, 8 Cow. (N. Y.), 36; McCarty «. Leggett, 3 HUl (N. Y.), 134; Soantlin v. Allisou, 12 Kan. 35; Coleman v. Lyman, 42 Ind. 289; Dale V. Shirley, 8 Kan. 276; Salmon v. Vallejo, 41 Cal. 481. But it was held in Scott V. Twiss, 4 Neb. 133, that if the grantor was in exclusive possession under claim of title, the covenant of seisin is not broken until the purchaser or those claim- ing under him are evicted by title para- mount. To constitute a breach, the person claiming title must have had a valid right thereto. Gerald v. EUy, 51 Iowa, 821. ^ As illustrative of the time when the statute begins to run for breaches of a cov- enant for quiet enjoyment, it may not be amiss to give instances of acts which con- stitute a breach. Breaches of this cove- nant may occur either by a molestation arising from a suit at law or in equity relating to the title or possession, or by any act by which the lessee is disturbed in the possession of the premises. Of the first kind is a recovery by ejectment by a person having a lawful title, or any other suit by which the peaceable occupation of the premises is prevented. Thus, a covenant in a lease that the lessee should quietly enjoy the estate discharged from taxes is broken by a suit for them, although com- menced after the expiration of the term. Laming o. Laming, Cro. Eliz. 316. But where the breach assigned was, " that the defendant had exhibited a bill in chancery against him for ploughing meadow, and ob- tained an injunction, which had been dis- solved with costs," it was held on demurrer to be no breach of coven ant ; for the covenant was for quiet enjoyment, and this was a suit for waste. Morgan «. Hunt, 2 Vent. 215 But a suitin equity that involves the title and estate operates as a breach. Coul- ston V. Carr, Cro. Eliz. 347; Lanning v. Lovering, id. 916; Morgaji v. Hunt, 2 Vent. 218; Daerdemay v. Gland, Cro. Eliz. 768; Ashton v. Martyn, 2 Keb. 268. So does a recovery in ejectment. Cobb v. Wellborn, 2 Dev. (N. C.) L. 388; Mitchell ■B. Warner, 5 Conn. 522. But contra, and holding that it does not constitute a breach, see Kerr I'. Shaw, 13 Johns. (N. Y.) 236. Or in trespass where the title is involved. Cobb V. Wellborn, ante. But contra, sea Webb V. Alexander, 7 Wend. (N. Y.) 281. But the language of the covemint must he looked to, and it may be such that a mere judgment in an action involving the title will not operate as a broach. Thus, if the covenant is that "the lessee shall enjoy the premises without lawful eviction " (Anonymous, 3 Leon. 71, pi. 100), it has been held that a bill in equity involving the title, brought against the lessor alone, does not operate as a breach. See also Selby V. Chute, 1 Eel. Ab. 430, pi. 15. The covenant may be either general or qna- liiiod; but in either case it runs with the land. Campbell v. Lewis, 8 Taunt. 715 ; Noke V. Awder, Cro. Eliz. 373. Even though the language of the covenants is that, " subject to the payment of the rent and the performance of the covenants," the lessee shall quietly enjoy, yet such words do not constitute a condition precedent, and a recovery may be had by the lessee for a breach of the covenant, although he has not paid the rent or performed his covenants. Dawson v. Dyer, 5 B. & Ad. 584 ; Allen v. Babbington, 1 Sid. 280 ; Hayes v. BickerstalT, 2 Mod. 34 ; Anony- mous, 2 Show. 202; Wakoman v. Waker, 1 Vent. 294. Any description of annoy- ance to the occupation of the premises which prevents the lessee from enjoying his property in so ample a manner as he is entitled to do by the terms of the lease, amounts to a breach of the covenant for quiet enjoyment of the second sort. Tlius, if a man covenants that he will not inter- rupt the covenantee in the enjoyment of premises, the erection of a gate which in- tercepts them ia a breach of the covenant. 173.] SPECIALTIES. 429 The deed of purchase having conveyed to Jameson, and afterwards to although he had a right to erect it An- drews V. Paradise, 8 Mod. 318. A mere demand of rent by a person having a supe- rior title does not amount to a breach, nor does any act of the lessor that merely amounts to a trespass. There must be either an actual or constructive eviction. Cowan V. SiUiman, 4 Dev. (N. C. ) L. 46 ; Mayor v. Mabie, 13 N. Y. 151 ; Valet v. Herner, 1 Hilt. (X. T. G. P.) 149; Louns- bury V. Snyder, 31 N. Y. 514. Nor does an unlawful act of another disturbing the tenant's possession amount to a breach. There must be a rightful interruption by a paramount title. Eootin v. Eobertson, 2 Strobh. (S. C. ) 366. But there may be an eviction and a consequent breach without a judgment. Cobb v. Wellborn, 2 Dev. (X. 0.) L. 388; Stewart v. Drake, 9 N. J. L. 139; McGary v. Hastings, 39 Cal. 360; Grist V. Hodges, 3 Dev. (X. C.) L. 200. Such a covenant may be said to be broken when- ever there has been an involuntary loss of possession by the hostile assertion of an irresistible title, whether with or without Judgment, or whether an actual disposses- sion has transpired or not. It is enough if the title is paramount, and is asserted so that the tenant must either quit possession or yield to it. McGary v. Hastings, 39 Cal. 360. So if, after a demise of mines containing the usual covenant for quiet en- joyment, the lessor digs a quarry over the mines, and makes holes, through which water percolates and escapes into the mines,. although he had a legal right to work the quarry, his doing so in such a manner amounts to a breach of the covenant for quiet enjoyment of the mines. Shaw V. Stenton, 2 H. & X. 858. An action on the covenant for quiet enjoyment may be maintained for the disturbance of a way of necessity, Morris v. Edgington, 3 Taunt. 24 ; or of a way by grant from the cove- nantor, Pomfret v. Ricroft, 1 Saund. 322. It must be remembered, however, that the act done must be in the assertion of title, and not a mere toi-tious act for which an action of trespass might be maintained. Sedden v. Senate, 13 East, 72. A covenant for quiet enjoyment does not obhge the lessor to rebiiild or repair, in case the build- ings are destroyed or injured by fire, tem- pest, or otherwise, as there is no implied obligation upon a landlord to keep the premises tenantable. Brown v. Qmlter, Ambler, 620. The covenant only extends to lawful interruptions, whether the word " lawful " is used in the covenant or not. Foster v. Pierson, 4 T. E. 617 ; Dudley v. Falliot, 3 id. 584; Major v. Grigg, 2 Mod. 213. And an allegation of a breach that does not show an interruption by title is bad. Eantin v. Eobertson, 2 Strobh. (S. C.) 366; Mayor v. Mabie. 13 X. Y. 151; Perry v. Edwards, 1 Strange, 400 ; Nicholas v. Pullin, 1 Lev. 83 ; Holmes v. Seller, 3 id. 305; Bailey ». Hughes, W. Jo. 242; Hamondv. Dod, Cro. Car. 5; Anony- mous, Lofft, 460; Chaundflower v. Priest- ley, Yelv. 30. General covenants for quiet enjoyment are not broken by a tor- tious eviction, but by an eviction by titie only. Hayes v. BickerstafF, Vaughan, 118; Hunt V. Allen, Winch. 25; Tisdale v. Essex, Hob. 35. And, in an action for a breach of such a, covenant, the plaintiffs declaration must set up an eviction by title paramount. Walton v. Hele, 2 Saund. 177; LanningiJ. Levering, Cro. EUz. 916; Xokes' Case, 4 Coke, 80 i; Bloxam v. Walker, Freem. 124; Foster «.Mapes, Cro. Eliz. 212; Brooking v. Cham, Cro. Jac 425; Hamond v. Dod, Cro. Car. 5; Cowper V. Pollard, W. Jo. 197. But a disturbance of the lessee by the lessor himself is not regarded with the same lenity as an eviction by a stranger; it being clear that the lessor exposes himself to an action on his covenant, although he enters wrongfully, notwithstanding the covenant provides against lawful evictions only. Corns V. , Cro. EMz. 544; Andrew's Case, id. 214 ; Penning v. Plat, Cro. Jac. 383; Pemberton v. Piatt, 1 Eol. 267; Cave V. Brookesby, W. Jo. 360; Crosse v. Young, 2 Show. 425; Lloyd v. Tomkies, 1 T. E. 671. And see Seaman v. Browning 1 Leon. 157. For, in such a case, the court will not consider the word " lawful ; " nor drive the plaintiff to his action of trespass, when by the general implied covenant in law the lessor has engaged not to avoid his own deed, either by a rightful or tortious entry. Crosse v. Young, ante ; Lloyd v. Tompkies, ante. Indeed, it would hardly 430 STATUTES OF LIMITATION. [chap. XIV. the plaintiff, the mines under the land, as well as the surface, the cove- be consistent with reason to allow the les- sor to defeat the tenancy hy pleading his own wrong. So, if a lessor covenants for quiet enjoy- ment against himself and his executors, the lessee, on eviction by the executor, need not show that the executor entered by title, any more than in the case of the lessor himself. Forte v. Vine, 2 Rol. 21; Ratcliff V. , 1 Bl. & Gold. 80. To support an action against the lessor, It is not necessary that he should have a title to enter; it is sufiicient if he enters under a claim of one. Lloyd v. Tomkies, 1 T. R. 671. And in the case just cited, where a vendor prevented a purchaser from enjoying a new appurtenance to the house sold, by looking it up against the purchas- er's will, the court held that this was such an assertion of right as to render the lessor liable to an action. The covenant goes to the possession, and riot to the title, and is not broken by a failure of the lessor's title merely. Parker v. Dunn, 2 Joiies (N. C.) L. 203 ; Waldron v. McCarty, 3 Johns. (N. Y.) ill; Howards. Doolittle, 3 Duer (N. Y. Superior Ct.), 464; Whitbeck v. Cook, 11 Johns. (N. Y.) 483; Boothby «. Hathaway, 20 Me. 251; Webb v. Alexan- der, 7 "Wend. (N. Y.) 281 ; Kortz v. Car- penter, 5 Johns. (N. Y.) 120; Van Slyck V. Kimball, 8 id. 198; Grist v. Hodges, 3 Dev. (N. C. ) L. 200; Cable v. Wellborn, 2 id. 388. And it has been held that a mere recovery in ejectment does not have that effect. Kerr v. Shaw, 13 Johns. (N. Y.) 236, Or in trespass as >i person claiming title to the land. Webb v. Alexander, ante. But the better rule would seem to be that a recovei-y against the lessor in any action either at law or in equity involving his title or estate, and affecting his immediate right of possession, operates as a broach of the ordinary covenant for quiet enjoyment. Martin v. Martin, 1 Dev. (N. C.) L. 43; 2 Piatt on Leases, 289, and cases cited. But in order to constitute a breach there must be a union of acts of disturbance and title, and a disturbance by a mere intruder does not create a breach. Hoppes v. Cheek, 21 Ark. 585; Ruutin ■«. Robertson, 2 Strobh. (3. C. ) 366. And the eviction and disturb- ance must be under rights or a title exist- ing at the time when the lease was made, and not under rights subsequentlyacquired. Ellis V. Welch, 6 Mass. 246. The rule is, as expressed in Knapp v. Marlboro, 34 Vt. 235, that, to sustain an action for the breach of a covenant for quiet enjoyment, it is necessary for the plaintiff to prove that he was evicted by a person who had a law- ful and paramount title, existing before or at the time when the covenant was entered into, as the covenant relates only to the acts of those claiming title and to rights existing at the time it was .entered into. See also Grist v. Hodges, 3 Dev. (N. C.) L. 200. A mere demand of possession by a person having title does not operate as a breach of this covenant. Cowan v. Silli- man, 4 id. 46. Nor does an eviction from a part of the premises under a statute, or municipal authority. Frost v. Earnest, 4 Whart. (Penn.) 86. An accidental trespass on the premises in hunting, Seddon v. Senate, 13 East, 72, or an entry for the purpose of beating the lessee, would not have that effect. Penn V. Glover, Cro. Eliz. 421. If the lessor covenants for quiet enjoyment against the acts of a person particularly specified, a disturbance by that person will amount to a breach, whether it is a rightful or tortious disturbance. Foster v. Mapes, Cro. Eliz. 212; Tisdale o. Essex, Hob. 35; Hill o. Browne, Freem. 142; Perry v. Edwards, 1 Stra. 400; Nash v. Palmer, 5 M. & S. 374; Fowle V. Welsh, 1 B. & C. 29. But tee Hayes v. Biokerstaff, Vaugh. 118. So, where one covenanted for quiet enjoyment without interruption by any person ' ' hav- ing or claiming, or pretending to have or claim," any right of common, and a breach was assigned, alleging an interruption by one J. B., who claimed common, &c., it was held that the plaintiff need not show any title in J. B. ; for the covenant ex- pressly extended not only to those who had right, but to those who claimed or pre- tended to a right; and, therefore, whether the claim were rightful or groundless, the covenantor was liable. Southgate v. Chap- lin, 10 Mod. 383; Perry v. Edwards, Stra. 400. If a general covenant for quiet enjoyment contains an exception of particular persons, § 173.] SPECIALTIEa 431 nant of the defendant was that he had good title to the mines. That the exception will be construed strictly, so as not to inehide any others than those expressly named. "Woodrosse v. Green- wood, Cro. Eliz. 517. A covenant for the quiet enjoyment of certain premises de- mised, excepting from the demise to one E. K. a certain close, parcel thereof, does not amount to a covenant for quiet enjoyment against an interruption by E. K. as to the lauds actually comprised in the lease. Woodroff v. Greenwood, Cro. Eliz. 517 ; Eashleigh v. Williams, 2 Vent. 61. In assigning a breach of a covenant for quiet enjoyment, where the interruption is th^ act of a third party, against whom the covenant has not specifically provided, it Is not sufficient to allege that having lawful right and title he entered, without alleging also, that he had such lawful title before or at the time of the date of the lease to the plaintiff; for possibly he might have derived title from the plaintiff himself. Kirby v. Hanksaker, Cro. Jac. 315 ; "Wooten V. Hele, 2 Saund. 177 ; Proctor V. Newton, 1 Vent. 184 ; Norman v. Fos- ter, 1 Mod. 101 ; Forte v. Vine, 2 Eol. 21; Skinner v. Kilbys, 1 Show. 70; Anon., 2 Vent. 46; Eashleigh v. WiUiams, 2 Vent. 61 ; Buckley v. Williams, 3 Lev. 325 ; Jordan v. Twella, Ca. temp. Hard. 171 ; Foster v. Pierson, 4 T. E. 617 ; Hodgson V. The East India Company, 8 T. E. 278 ; Campbell v. Lewis, 3 B. & Aid. 392. And see Noble v. King, 1 H. Bl. 34 ; Brookes v. Humphreys, 5 Bing. N. C. 55 ; Fraser V. Skey, 2 Chit. 646. It is not necessary, however, for the declaration to show what title he had. A different rule would im- pose insuperable difficulties on the plaintiff, a knowledge of the title being only to be acquired by inspection of the deeds, to which he could not have access. Proctor V. Newton, ante ; Foster v. Pierson, ante ; Hodgson V. The East India Company, ante. But where the inteiTuption is by the lessor himself, Corns v. , Cro. Eliz. 644, or by a person against whose acts the covenant has specially pravided, it is sufficient to allege an entry by him, without stating under what title or pretence, or whether by right or wrong, Foster v. Mapes, ante. Some particular act, however, by which the plain- tiff is interrupted must be shown, other- wise the breach will not be well assigned. Anon., Com. 228. In an action on a cove- nant that the lessor is seised in fee, a breach may be assigned in terms as genei'al as the covenant, viz., that he was not seised in fee, without showing that another was so seised, nor why the defendant was not so seised. Muscot u Ballet, Cro. Jac. 369 ; Glinister v. Audley, T. Raym. 14; Glim- ston V. Audly, 1 Keb. 58. So, on a cove- nant that the lessor has good right to de- mise, the lessee may assign as a breach that he had not good right, without showing in whom the right was vested. Bradshaw's Case, 9 Coke, 60 b ; Salman v, Bradshaw, Cro. Jac. 304; Lancashire v. Glover, 2 Show. 460. In an action on a covenant for quiet enjoyment, an allegation, as a breach, that the plaintiff (lessee) entered and was evicted by the defendant (lessor), is not supported by proof that he made a demand of possession and was refused, an expulsion, which is a putting out, not having taken place; for a party who comes to claim, but has never entered, cannot be expelled. The breach is not for expelling, but for not letting in. Hawkes V. Orton, 5 Ad. & El. 367; Warn v. Bick- ford, 9 Pri. 43. The ordinary covenant, by the lessor, for quiet enjoyment as against any person claiming by, from, or under him, is broken by an eviction of the tenant by the lessor's widow entitled under a conveyance taken by the lessor to the use of himself and his wife. Butler v. Swinnerton, Cro. Jac. 657. Also, by an eviction by a person claiming under a prior appointment by the covenantor and another person. Calvert v. Sebright, 15 Beav. 156. As to what constitutes an eviction, see chapter on Eviction, post. But a distress for arrears of land-tax due from the lessor at the time of the demise will not operate as a breach. Stanley v. Hayes, 3 Q. B. 105. The lessee of a house and garden, forming part of a large ai'ea of building ground, is not entitled under 'this covenant to restrain the lessor or per- sons claiming under him from building on the adjoining land so as to obstruct the free access of light and air to the garden. 432 STATUTES OF LIMITATION. [chap. XIV. covenant, I think, was broken as soon as it was made, by reason of his having before become party to a lease of the mines, which lease was then in force. ^ It was a covenant running with the land, and a continuing Potts V. Smith, L. K. 6 Eq. 311. When contained in a lease of the exclusive right of shooting and sporting over a farm, this covenant does not hinder the tenant of the farm from using the land in the ordinary- way, or from destroying furze and under- wood in the reasonable use of the land as a farm; and the lessor will not be liable for wrongful acts committed by such tenant contrary to the reservation of his landlord. Jeffryes v. Evans, 19 C. B. n. s. 246. See Newtonu. Wiliiiot, 8M. &W. 711. Under a covenant in the form above mentioned con- tained in a lease of a stream of water ex- cepting so much as should be sufficient for the supply of persons with whom the lessor should have already contracted, diversions occasioned by contracts made previously to the demise will not constitute breaches. Blatchford v. Plymouth, 3 Bing.'N. C. 691. Where the covenant provides that the lessee shall quietly hold and enjoy the premises for and during the said term, the last words must be taken to refer to the term which the lessor assumed to grant by the lease, and not to the term which he had actually had power to gi'ant. Evans v. Vaughan, 4B. &C. 261, 268. A general covenant for quiet enjoyment extends only to the acts of persons claim- ing under a lawful title. Dudley i). Fol- liott, 3 T. R. 584. For the law will never adjudge that a lessor covenants against the wrongful acts of strangers, except his cove- nant is express to that pui-pose. Wotton V. Hele, 2 Wms. Saund. 178, note (8). The construction, however, is different where an individual is named ; for there the covenantor is presumed to know the person against whose acts he is content to covenant, and may therefore reasonably be expected to stipulate against any dis- turbance from him, whether by lawful title or otherwise. Lonn Ellenboeough, C. J., in Nash v. Palmer, 5 M. & S. 387 ; Fowle V. Welsh, 1 B. & C. 29. Under a general covenant for quiet en- joyment contained in the lease of a coal mine, the woi'king of iron-stone lying be- tween the surface and the demised coal in such a manner as to interrupt the lessee in his occupation of the mine, will constitute a breach. Shaw d. Stenton, 2 H. & N. 858. Under a covenant by the lessor, in an underlease, that the lessee shall liold the premises without any lawful eviction, &c., by the lessor, or any persons whomsoever clafming- by, from, under or in trust for her, or by or through her acts, means, right, &c., an eviction of the underlessee by the original lessor for a forfeiture in- curred by the use of the premises as a shop, contrary to a covenant in the original lease, of which the underlessee had not been'in- formed, is not an eviction by means of the lessor within the meaning of the covenant. Spencer v. Maniott, 1 B. & C. 457. See Woodhouse v. Jenkins, 9 Bing. 431. Un- der a covenant that the tenant, paying the rent and performing the covenants, shall quietly enjoy, the payment of rent is not a condition precedent to the performance of the covenant for quiet enjoyment. Daw- son V. Dyer, 5 B. & Ad. 584. A clause in a deed, whereby the lessor " for himself, his heirs and assigns, the premises unto the lessee, his executors, administrators, and assigns, under the rents, covenants, &c., before expressed, against all persons what- soever lawfully claiming the same, shall and will, during the term, warrant and de- fend," operates as an express covenant for quiet enjoyment during the whole term granted by the lease. Williams v. Burrell, 1 C. B. 402. 1 Covenants of this character are broken by the existence of any incumbrance upon the land the instant the deed or lea.se is delivered. Seitzinger v. Weaver, 1 Eawle (Penn.), 377; Knepper v. Kuntz, 58 Penn. St. 480; Bingham v. Wetherwax, 1 N. Y. 509; Stewart t). Drake, 21 N. J. L. 139; Hamilton v. Wilson, 4 Johns. (N. Y. ) 72 ; McCarty 1). Leggett, 3 Hill (N. Y.), 134; Mott V. Palmer, 1 N. Y. 664; Chapman v. Holmes, 10 K. J. L. 20; Garrison v. Sand- ford, 22 id. 261. But if a covenant of seisin is qualified by subsequent covenants in the deeds, as if the grantor covenants generally that he is well seised, &c., and warrants the premises to the grantee, &c., " against § 173.] SPECIALTIES. 433 covenant, and a breach of it by means of the lease was a continuing breach ; ^ and although the plaintiff might have sued upon it upon his becoming possessed, and might have recovered the damages he had sus- tained (if any) by reason of the breach, he was not bound to do so ; and I am of opinion that he continued entitled to sue for any damage after- wards sustained whenever any such should have resulted from the breach ; andj finally, that if the statute of limitations apply at all to covenants for title^ the time of limitation does not necessarily begin to run from the making of the covenant, or of a lease which is a breach of the covenanti and that it is. no bar as long as the lease continues, and any damage nominal or substantial is or may be sustained.^ I do not understand it to be questioned that the convej'ance passed the mines as well as the land to the plaintiff, nor that a covenant for title runs with the land, nor therefore that the plaintiff is entitled to the benefit of this covenant, nor that it was broken by the making of the lease. And I am of opinion that he is entitled to sue upon it now, upon the ground that the existence of the lease, until it expired in 1865, was au incumbrance upon the land, and rendered it of less value than if it had not existed ; and, further, that it made the entry of the lessees lawful, and so enabled them to take the fire-clay from the mine ; and, although they themselves and not the defendant are hable to the plaintiff for the value of the fire- clay taken, it is a damage to the plaintiff that he is put to his action against them, and may incur extra costs in such action which he could not have been exposed to but for the right of entry conferred upon them by the defendant.' I am also, of opinion that the entrj^ into the mine, all claims and demands except the lord of continuous, fully austaiaing the doctrine of the soU," both coTenants must be (jon- Kingdom v. Nottle, 1 M. &, S. 355, and 4 strued together, and the last qualifies the id. 53. first, so that the title of the lord of the soil ^ It would be an exceedingly harsh rule does not operate as a breach of the first that would compel a tenant, who is in the covenant. Cole v. Hawes, 2 Johns. {S. Y. ) quiet enjoyment of premises, under a lease Cas. 203. for a long term, to bring an action within 1 But it is generally held that a general twenty years, or any other shorter term, covenant of title in a deed does not run for a breach of such a covenant, where his with the lands, because, being broken by damages would be only nominal, and thus the delivery of the deed or lease in which preclude himself from any remedy, if by an it ia contained, it is insianter converted actual eviction, at a later period, he sus- into a chose in action, which is not assign- tained heavy damages; and it is believed able. Blydenburgh v. Cotteal, 1 Duer that the courts are generally inclined, lat- (N. Y. S. C), 176; Harsher v. Eeid, 45 terly, to hold that this is a continuous N. Y. 415; Miriek v. Bashford, 38 Barb, covenant, and runs with the land. See (N. Y. ) 181; Carter v. Denman, 23 N. J, Martin v. Baker, ante ; Devone v. Sunder- L. 260; Lot v. Thomas, 2 id. 260. But such land, ante; Dickson v. Desiree, ante ; Ben- a covenant in a lease stands upon a difier- nett v. Waller, 23 IlL 97. ent footing. In Maine by statute, and in 'A covenant against incumbrances is Missouri, Dickson v. Desiree, 28 Mo. 151 ; continuous, but only nominal damage can Indiaila, Martin v. Baker, 5 Blackf. (Ind.) be recovered for its breach until the cove- 232; and in Ohio, Devone v. Sunderland, nantee has been actually damnified thereby. 17 Ohio. 52, such covenants are treated as Reading o. Gray, 5 J. & S. (N. Y. S. C.) VOL. 1.— 28 434 STATUTES OF LIMITATION. [CHAP. XIV. and the taking the fragments of coal in 1848 by virtue of the lease, which was within the twenty years, was a breach of the covenant for quiet enjoyment. " The case of Kingdon v. Nottle,'' upon a covenant for title, and King V. Jones," upon a covenant for further assurance, are authorities to show that these covenants are continuing covenants and the breaches of them continuing breaches, and that a right of action accrues toties quoties when and as often as damage actualty arises from the breach of either covenant.' Kingdon v. Nottle was the case of a mortgage in fee, and the mortgagor covenanted with the mortgagee and his heirs and assigns that he had good title to convey and was seized in fee. The mortgagee held during his life and brought no action ; after his death his execu- trix sued upon the covenant for title and the further covenant for fur- ther assurance, assigning for breaches that defendant had no title, and that plaintiff requested him to levy a fine, which he refused. She failed on the ground that the covenant ran with the land, and had passed to the devisee of the covenantee. But in the following year the second case was decided in an action br&ught by the same person as devisee of the original covenantee suing as assignee of the covenant, and assign- ing for breach that the defendant had no title, and for damage that the lands were of less value than if there had been a good title, and that she had been prevented from selling them for so large a price as she would otherwise have obtained. There it was argued that the breach having been in the testator's lifetime it could not be assigned ; that the covenant might pass with the land, but not so the breach for which the testator and he alone could sue. But it was held that there was a breach also in the time of the devisee which gave her a right of action upon which she was entitled to sue : ^ Lord Ellenbokotjgh observing, ' The covenant passes with the land to the devisee and has been broken in the lifetime of the devisee ; for so long as the defendant has not a •good title there is a continuing breach ; and it is not like a covenant to do an act of solitary performance which not being done the covenant is 79; Stanardi). Eldridge, 16 Johns. (N. Y.) Slater v. Eawson, 6 Met. (Mass.) 439. 254 ; De Forest v. Leete, 16 id. 122 ; And the same rule is adopted as to a cov- HalljJ. Dean, 13 id. 105; Funk v. Voneida, enant against incumbrances where it ex- 11 S. & R. (Penn.) 109; Cathcart b. Bow- isted at the time of the conveyance and man, 5 Penn. St. 317. continued at the time of the assignment, so 1 1 M. & S. 355 ; 4 M. & S. 53. See as to continually enlarge the damages, and also Bonomi v. Backhouse, 9 H. L. C. the assignee is entitled to sue for damages 603; E. B. & E. 654; L. J. Q. B. 378. subsequent to the. assignment. Sprague 2 5 Taunt. 418; 4 M. & S. 188. v. Baker, 17 Mass. 589. But where the » Where the grantor or lessor was in grantor or lessor is not in possession the possession at the time the instrument was covenant is broken at once, and does not delivered, and the grantee or lessee enters run with the land. Bartholomew v. Can- in pursuance of the deed or lease, the cov- dee, 14 Pick. (Mass.) 167. A covenant enant for title runs with the laud and the for further assurance runs with the land, grantor or lessor is answerable thereon Benuett v. Waller, 23 111. 93. to the assignee of the grantee or lessee. * Sprague v. Baker, ante. § 173.] SPECIALTIES. 435 broken once for all, but is in the nature of a covenant to do a thing toties quoties as the exigency of the case may require.' Here then the damage, that the plaintiff was unable to sell at as large a price as she would have obtained if the title had been good, was held to constitute a continuing substantive cause of action ; and if the action had been brought at a long subsequent period, and the statute of limitations had been pleaded, the time could not have run from any earlier period than the accruing of that action. " And so in King v. Jones, ^ where the covenant was for further assur- ance, the covenantee in his lifetime called upon the covenantor to levy a fine and afterwards died, and the plaintiff, his heir, to whom the cov- enant had passed as assignee, entered upon the premises and was pos- sessed, and was afterwards evicted and brought his action, it was objected that the breach was in the lifetime of the original covenantee, and that he alone was entitled to sue, and that if any action lay after his death it must be by his executors, as the damages belonged to his estate. But, after an elaborate argument and time taken to consider, it was held by the Court of Common Pleas that the action weU lay, and that the refusal to levy a fine (the further assurance required) was a breach and a damage to him ; that ' the ancestor (the original covenan- tee) had required the defendant to perform his covenant, but gave him time and did not sue him instantaneously for his neglect, but waited for the event. It was wise in him so to do until the ultimate damage was sustained, for otherwise he could not have recovered the whole value ; the ultimate damage then not having been sustained in the time of the ancestor, the action remained to the heir, who represents the ancestor as to the land, as the executor in respect of personalty.' These deci- sions show that it is the resulting damage, and not merely the breach of covenant, which gives the right of action. " It is true when these cases were decided there was no statute of limi- tation expressly taking away the right to sue upon a covenant after a certain number of years from the breach. But the language of the statute is that no action shall be brought but within twenty years after the action has accrued ; and we have only to consider the real nature of the covenant for title, and of the various kinds of breaches of it, which may be committed, to see that the statute of limitations is wholly inapplicable to such breaches, except where the right of action is upon an eviction of the whole property conveyed, so that there is no land with which the covenant may run and nothing left upon which the covenant can operate.* 1 5 Taunt. 418 ; 4 M. & S. 188. See the statutory period before action brought; also Bennett v. "Waller, 23 111. 93. but the great majority of the cases in this ^ The covenant being continuous, each country hold that the covenant of seisin breach constitutes a separate cause of contained in the conveyance of real estate action, and, if within the statute, it should does not run with the land. They hold apply only to breaches occurring more than the covenant to be in prcesenti, and that it 436 STATUTES OF LIMITATION. [CHAP. I^IV. " In such a case the statute may apply, and from such an eviction the time maj' begin to run. But, in the cases cited as hei'e, the breach being the grant and continued existence of a lease of a part of the prop- erty only, as of the mines and minera,ls under the land, how can the statute apply ? The mine may never be ■worked at all, so that no dam- age may ever be sustained ; and if an action be brought on the grant of the lease, onl}- nomina,! damages may be recovered. But the lease maj- be for forty years ; a quantity of minerals may be taken at the end of ten years, a number of houses on the surface subverted and de- stroyed in twenty years, and a mansion injured in thirty years. ' ' If these be not separate and substantive causes of action, upon each of which the complainant has at least twenty j-ears to sue, of what use is the covenant in such a case ? But suppose another case : Covenant for title in a conveyance in fee of a landed estate. It turns out that the covenantor a year or two before has sold a,nd conveyed the reversion pf one-half of the property at his death to. A. B., provided A. B. is then living. The covenantor lives for twenty years and then dies, and A. B. survives him and enters. Upon these facts, I apprehend it is not tp be doubted that the covenant is broken as soon as it is made ; for if the purchaser, the covenantee, were minded to sell the propertyi or he became bankrupt, and it was of necessity to be sold, it -vyould sell for much less than if there were an indefeasible title in fee simple. But supposing no action to be brought until the death of the covenantor and the entry of A. B., can it be contended that the statute of limita- is broken, if at all, when the deed is de- be permitted to su? and recover, damages lirered, and that the claim for damages under this covenant is exceedingly unjust, thereby becomes personal in its nature to If there is a covenant of warranty in the the grantee, and is not transferred by first grantor's deed, then he is liable over a conveyance to a, subsequent grantee, to his grantee under this covenant; but if But in Iowa, wh?re deeds have been, re- there is no such covenant, then we have duced to forms of great simplicity, the the anonialous case of a party wljo has no English doctrine, as stated in the text, interest being permitted to sue for and has been fully adopted. A contrary rule recover damages where he has sustained is productive of great hardship, and oper- none. Scholfield v. Iowa Homestead Co., ates oppressively in all cases where the 32 Iowa, 317. And in such a case the land has been conveyed by the grantor, rule of damages being usually the con- either to the grantee or subsequent pur- sideration money and interest (Vail v. chaser, and there is a fair field for Junction E. E. Co., 1 Cine. (Ohio), 317), legislative intervention if necessary to a party is permitted to profit at the ex- correct the evils resulting from the doc- pense of others by a rule of law that is both trine so generally adopted here. There unwise and unjust. Eichards v. Bent, can be no good reason why, if the pur- 59 111. 38. In Indiana, Massachusetts, chaser is evicted, he should not receive the South Carolina, Ohio, and Missouri, the indemnity of the covenant; for he is not courts have given eflTecjt to the doctrine only the first but the only sufferer in every stated in the text. Martin o. Baker, 5 instance, except where he has not paid for Blackf. (Ind.) 282 ; Devone v. Sunder- the land, and for the grantee under the land, 17 Ohio, 62 ; Dickson v. Desiree, deed, who has sold and received his pay for 23 Mo. 152 ; 1 N. & Mo. (S. C.) 104. the land, so that he sustains no loss to § ITi-] SPECIALTIES. 437 tions would be a bar ? If it be, and the covenantee was ignorant of the cohvej'ance until the death of the covenantor, he loses half his land and has no remed}-. And if he hears of it and sues within the twenty j-ears, but in the covenantor's lifetime, how can the jury estimate the damages in the uncertainty whether the covenantor may not survive A. B., and so that the covenantee will never be disturbed in his title? "I apprehend, therefore, that upon these grounds and upon all the authorities the lease in question was a continuing breach of covenant, and that the plaintiflF was entitled to his action at anj- time within twenty years of any damage, whether nominal or substantial, being sustained by entry into the mine or otherwise, as long as the lease was in force, and consequently from the entry into the mine in 1848, and the taking of the fragments of coal ; and further, that the action lies by reason of the mere existence of the lease which, as conferring a right to enter the mine and upon the surface, affected more or less the value of the property until it expired by effluxion of time in 1865. I think, therefore, that judgment should be entered for the plaintiff, with nom- inal damages." Previously to this statute, as before stated, a specialty debt was pre- sumed to have been paid at the end of twenty years. And it seems that even in England, if the statute, through some defect in pleading, cannot be taken advantage of, yet the fact of payment may still be presumed.' Sec. 174. Covenants of Warranty, against Incumbrances, &c. — ■ Covenants running with the land are such as relate to and concern the land, and pass with it where there is a privity of estate. Of this class are covenants of warranty, which are in effect the same as those 1 Be.st on Presumptions, 188. The nile of money. The purchaser of land, who relative to mortgages is, that, where the had given a mortgage thereon for the pur- mortgagee has never entered under the chase-money, contracted with a third per- mortgage, and there has heen no payment son to sell him certain land, and, as part of of interest, nor demand thereof, nor any the consideration thereof, such third per- admisslon of the mortgage as a subsisting son covenanted to discharge the above- lien, within twenty years, the mortgage mentioned mortgage. The mortgagee sub- will he presumed to have been satisfied, sequently became the assignee of the Dunham v. Jlinald, 4 Paige (N. Y.) Ch. contract, agreeing to perform it, and took 441 ; Blethen v. Dewnal, 35 Me. 556 ; possession under it of the land included Chick V. Rollins, 44 Me. 104 ; Boyd ». therein, and continued in possession to the Harris, 2 Md. Ch. 210; Cheever u. Perley, time of the present suit, during which 11 Alien (Mass.), 584; Tanmaker v. Tan time no payment, or demand thereof, had Buskirk, 1 N. J. Eq. 685; Evans v. been made upon the mortgage, though more Huffman, 5 id. 354; Collins o. Torry, thantwenty-threeyearshadelapsed between 7 Johns. (N. Y.) 278; Jackson v. Hudson, the time when the last payment became 3 id. 375 ; Giles v. Baremore, 5 Johns, due and the filing of this bUl. Held, that (S. Y.) Ch. 545. See also Jackson v. the mortgage was satisfied in equity, and Pratt, 10 Johns. (N. Y.) 381 ; Jackson would he presumed satisfied at law; and V. Delancey, 11 id. 365; Belmont ii. O'Brien, it was ordered to be cancelled. Kellogg 12N. Y. 394. And the same rule applies d. Wood, 7 Paige (N. Y. j Ch. 578. to all sealed instruments for the payment 438 STATUTES OP LIMITATION. [chap. XIV. for quiet enjoj'ment, and extend to the possession as well as the title, so that any disturbance of the free and uninterrupted use of the prem- ises under a superior right, even without an actual expulsion therefrom, is in law an eviction and a breach of the covenant.' There can be no breach of this covenant until there is an actual eviction either from the whole or some part of the premises,!' and the eviction must be stated in the declaration." Consequently neither the statute, the common law, nor statutorj^ presumption attaches to actions upon this covenant until the grantee or lessee is evicted from some part of the premises. But covenants against incumbrances are said to be broken as soon as the deed is delivered, if the grantor or his predecessors in the title had previously mortgaged or incumbered the same,' and, although the mort- gage is not due, nominal damages are recoverable ; ^ but, according to the English doctrine and some American cases, the grantee may wait until the mortgage becomes due, and neither the statute nor the pre- sumption from lapse of time will attach to the covenant for actual damages until that time." But little difficulty will be experienced in 1 Eea-ii. Minkler, 5 Lans. (N. Y.) 196; "Withby I!. Mumford, 5 Cow. (N. Y.) 137; Siiydam v. Jones, 10 Wend. (N. Y.) 180. 2 Cowdrey i). Coit, 44 N. Y. 382; Kent V. Welch, 7 Johns. (N. Y.) 258 ; Knepper V. Kurtz, 68 Penn. St. 480; Patton v. MoFarlane, 3 P. & W. (Penn.) 419; Flowers v. Foreman, 23 How. (U. S.) 132. 8 Clark V. McAnulty, 3 S. & R. (Penn.) 364; Pauli;. Witman, 3 W. & S. (Penn.) 407 ; West v. Stewart, id. 189. * Cathcartt'. Bowman, 5 Penn. St. 317. " Funk V. Toneida, 11 S. & R. (Penn.) 109. ^ This rule is fully adopted in an ably considered case in Illinois. Richards v. Bent, 29 111. 38, in which the court say: " The principle which allows an action in the name of the assignee of the covenant of seisin, applies with much greater force in the case of the assignment of the cove- nant against incumbrances, when drawn in the form usual in this country. Where the covenant of seisin is broken, and there is an entire failure of title, the breach is final and complete, the covenant is broken once for all aetual damage and all the damages that can result from the breach have accrued; the measure of damages is the purchase-money and interest, which are at once recoverable. In such case the right of action is substantial, and its transfer might well be held to come within the mle prohibiting the assignment of choses in action. But the covenant against incumbrances is one of indemnity ; the covenantee can recover only nominal dam- ages for a breach thereof, unless he' can show that he has sustained actual loss or injury thereby, or has had to pay money to remove the incumbrance. Without this there is the barren right of recovery of only nominal damages; the right of action is one only in name. A subsequent grantee does not claim to sue, by means of the purchase of a chose in action. The subject of his purchase was a lot of ground; his claim is that the covenant was annexed to the real estate; that it ran with the laud and passed to him, not by direct operation of assignment, but as an incident to the land. The right of suit for nominal dam- ages, which the covenantee had against the covenantor, was no matter of consid- eration between the parties, at the time of the purchase, but they expected that, in case the grantee should sustain any actual damage by reason of a prior incumbrance, the covenant would then be to him a means of indemnity. The case, therefore, does not come within the reason of the rule prohibiting the assignment of choses in action. Being unembarrassed by deci- sions of our own, upon the point, we feel free to adopt the more reasonable and just of the two rules; which is, the one which sustains the right of the subsequent § 175.J SPECIALTIES. 439 determining when the statute begins to run upon or the presumption attaches to a covenant, because in all cases it begins to run from the time of a breach thereof; and it is only necessary to ascertain at what time an action could first have been maintained thereon, to determine the period from which the running of the statute began. Enough has already been stated to show the distinction between con- tinuous covenants and those which are exhausted by a single breach ; and this distinction is important and should not be lost sight of. Sec. 175. Bonds. — Upon bonds, the statute, in those States where this class of obligations is within it, does not begin to run until there is a breach of condition ; and if there are several distinct conditions, it only begins to run upon each condition from the time each was broken ; ^ and the same rule prevails as to sureties and principals therein.^ Upon an indemnity bond the statute does not begin to run until the party to- whom it was given has been damnified ; and it is doubtful whether the mere fact that a judgment has been obtained against him is sufficient, to put the statute in motion. The fact that he has become liable to- pay, without payment in fact, is not believed to be sufficient.* In, an English case ■• where the plaintiff's declaration was frtimed upon a. bond not setting out a condition, and the defendant pleaded that the cause of action did not accrue within twenty j-ears, and issue was joined thereon, and it appeared at the trial that the bond had been executed more than twenty years before the action was brought, but that it was a post-obit bond for the pajTnent of a sum of monej- after the death of a person who was proved to have died within twenty years, it was held that the statute did not begin to run until the death of such person, and consequently that the action was seasonably- brought. TVliere acts are, by the terms of a bond, to be done succes- sively in a series of years, a new cause of action arises from each omission to do the act at the proper time ; and, if the plaintiflf can show any breach within the statutory period, he is entitled to recover for that.^ If a bond is given, conditioned for the faithful discharge of the duties of a certain office, the statute begins to run in favor of the surety thereon from the time of an actual breach. Thus, where an action was- grantee to bring an action in his own ' lilies v. Fitzgerald, 11 Tex. 417. In. name, against the principal grantor, on Hall v. Creswell, 12 G. k J. (Sid.) 36, it the covenant against incumbrances." The was held that the right of action accrued, justice and the reason of this doctrine are ftom the time of payment, and conse- incontrovertible. But it must be remem- quently that the statute then began to bered that in a great majority of the States run. a contrary doctrine is held, and the statute * Sanders v. Coward, 15 M. & W. 56. attaches to this covenant as soon as the ' Blair v. Ormond, 20 L. J. Q. B. 452; deed is delivered. Chapman v. EombaU, Amott v. Holden, 22 id. 19. In Keefer v. 7 Keb. 399. Zimmerman, 22 Md. 274, it was held no 1 Salisbury v. Black, 6 H. & J. (Md.) defence to an action for the breach of a 293; Thurston v. Blackeston, 36 Md. 501. covenant that there has been a previous * Thurston v. Blackeston, 36 Md. 501. breach upon which the statute has run. 440 STATUTES 01' LIMITATION. [CHAP. XIV. brought upon a bond given by a eonimissioner to sell real estate, an action accrues against the surety after the lapse of a reasonable time within which the commiesionef neglects to pay over the money, and from that time the statute begins to run in the surety's favor.' If no time is fixed within which the condition of a bond is to be per- formed, but it is left contingent upon the happening of a certain event, the statute does not attach thereto until such event transpires. Thus, in a New York case,'' the defendant gave the plaintiff's testator a bond for fifteen hundred dollars, which sum was to remain with the defendant until demanded by the plaintiff's testator, and if not then paid the obligation of the bond to be in full force. The plaintiff's testator died without ever having made demand for the money, and bequeathed the bond to his daughter, the defendant's wife, with directions that on the death of either herself or husband his executors should collect it. The ■wife died first, and in an action upon the bond by the testator's execu- tors it was held that the defendant by accepting the money upon a contract where no interest was payable, and the principal only at the will of the obligee, had put it in the power of the obligee to postpone the day of payment at his pleasure, and that the bequest to the wife of the obligor had the effect to postpone the possibility of demand until the death of either herself or the obligor. Where, however, no time for performance is spfecifled, and perforra- ,ance is not dependent upon any contingency, a right of action begins to run within a reasonable time. Thus, where a bond was conditioned to pay an outstanding mortgage on land bought by the mortgagee, and no time within which payment should be made was fixed in the bond, it -was held that a right of action accrued and the statute began to run at the end of a reasonable time after the mortgagee would be obliged to receive the money.' But in such a case it would seem that the right of ■the mortgagor to pay and the right of the mortgagee to sue for the money arose at once, and there would seem to be no reason wh3"the rights of either party should be subjected to any such uncertainty as the rule last stated entails upon them ; and in a case where a mortgage was executed, and fixed no time for redemption, it was held that the right to redeem attached at once, and the statute began to run from the execution of the mortgage.* In a South Carolina case,^ where a cove- nant fixed no time for payment but provided for a reference to arbitra- tion in case of any disagreement as to the amount to be paid, it was held that the statute attached to the demand from the date of the cove- nant, and that the statute of limitations did not begin to run until after the demand made by the obligee's executors, after the devisee's death. But if a specific time for performance is named, then the statute attaches at that time. Thus where A. conveyed land to B., and at the 1 Owen !). State, 25 Ind. 107. * Tucker v. 'White, 2 D. & B. (N. C.) 2 Sweet V. Irish, 36 Barb. (N. Y. ) 467. Eq. 289. 8 Jennings v. Norton, 31 Me. 512. ^ Wilson V. Wilson, 1 MoMull. (S. 0.) Eq. 320. § 17&.] SPECIALTIES. 441 same time gave him an obligation that if at the end of a year the land should not be worth the money received therefor with the interest, he "would make up ihe deficiency, "or otherwise pay that amount on receiving a reconveyance," and B. at the same time gave to A. a bond stipulating that he would, on repayment of such money at any time within the year, reconvey the premises to A. It was held that B.'s right of action against A. did not accrue nor the statute of limitations begin to run until the expiration of the j-ear, but that from that time the statute began to run upon the obligation.^ In a case in Maine, ^ a question arose in an action upon a jail-bond, whether, where there were two distinct breaches of tlie bond, the statute began to run upon the first breach, so as to bar an action upon the second ; and the court held that it did, because the amount recoverable upon the first breach would have been the same as for both. Bat in an action upon a bond where the liabiUty is continuous, and arises for each breach, as upon a bond given to a sheriflf by his deputj-, conditioned for the faithful perform- ance of his duties as such, the statute only runs from the date of each breach, and a recovery may be had as to breaches not barred, although the statute has run as to others.' In the case of bonds conditioned for the conveyance of real estate, or title bonds as they are called, the statute does not begin to run against a suit by the obligee for a specific performance untU a demand for a deed and a refusal bj' the obligor, or some other decisive act of the obligor indicating an intention to claim the land or repudiate the sale ; ' but the statute attaches from the date of the first demand, and a new right cannot be acquired by a new demand. Sec. 176. Effect of Ackncwledgment of Payment on Specialties. -^In those States where no provision is made by statute relative to spe- cialties, the efiect of acknowledgment is well expressed by Mr. Banning in his work on Limitations. ° He says : " According to the Viee-Chan- 1 Smith r. Fiske, 31 Me. 512. should be replaced and transferred to B.; 2 Brown v. Houdlette, 11 Me. 399. and the condition was that, if W., before s Austin u. Moore, 7 Met. (Mass.) 5th June, then next, purchased the said 2jg amount of stock and transferred the same * Yeary ■»; Cummins, 28 Tex. 91. to B., and paid to B., in lieu of the divi- B Pacre 185. In Blair v. Ormond, 17 dends thereof, sueh sums as B. would have Q. B. 423, which was an action of debt by been entitled to receive for the dividends the administrator of B. on a bond made by if the stock had continued in his name, at W. to B., dated 5th December, 1812. The such times, and in such proportions, and condition recited that B. had agreed to ad- in such manner, as the dividends would vance to W. the produce of the sale of cer- have been payable to B. if the stock had tain stock in the funds, without any other not been sold, then the bond to be void, advantage than B. would have been enti- Breach : (1) that W. did not, before the tied to if the stock had remained in his 5th June, or since, purchase the said name in the bank; that B. had sold the amount of stock and traiisfer to B., or to stock and paid the produce to W.; and plaintiff as administrator; (2) that the that it had been agreed between them that dividends of the stock, if it had remained the same or a like sum of the same stock standing in the name of B., would have 442 STATUTES OF LIMITATION. [chap. XIV. cellor,^ the principle on which the courts acted previously to the stat- ute we are now considering was this. There was then no statute been payable half-yearly after the date of the bond, and that the first and only one of such dividends before the said 6th June would have been payable on 5th January,' 1813; that on 11th September, 1824, B. died ; that, if the stock had continued standing in B.'s name, or plaintiffs as ad- ministrator, a largo sum, to wit, &c., would have been payable half-yearly as dividends, and that the money payable in lieu of such dividends, and becoming due after B.'s death (during a period which was specified), amounted to a large sum, to wit, &c. ; and that, although the stock had not been transferred into the name of B. or of his administrator, yet W. had failed to pay the sums so due in lieu of dividends. The defendant pleaded that the causes of action did not accrue within twenty years next before the commencement of the suit. To this plea the plaintiff replied : as to the first breach, that, while the stock re- mained untransferred, and a certain sum, to wit, &c., was due in lieu of the divi- dends, to wit, on 10th September, 1824, W. made an acknowledgment to J. B. that the stock remained untransferred contrary to the condition, and was due thereon, by W. making to B. satisfaction on account of part of the said sum, to wit, £10 ; and that the action was brought within twenty years next after such acknowledgment ; and as to the other causes of action, that they did accrue within twenty years, &o. To this replication the defendant re- joined, as to the first part of the repli- cation, a traverse of the bringing of the action within twenty years next after such supposed acknowledgment. Issue thereon. As to the second part of the replication, issue was joined. It was proved .that B. had, since the advance to W., agreed to board and lodge with W. at 10s. 6d. per week, that amount to be deducted from the interest of the money which W. had borrowed ; and that I settlement shouid be made every six months. B. had boarded and lodged with W. till B.'s death, in September, 1824; but no settlement had ever taken place, though frequently demanded by B. It was held that, supposing issue raised by the rejoinder cast upon plaintiff the bur- den of proving that such an acknowl- edgment as that mentioned in the rep- lication was made within twenty years next before, &c., there was sufficient evi- dence to entitle plaintiff to a verdict upon both the first and the second issues. Also, that the bond was not within Stat. 3 & 4 Wm. IV. 0. 42, § 5 ; that the repli- cation, therefore, was no answer in law to that part of the plea which related to the first breach ; and that plaintiff was there- fore not entitled to any damages on that breach. But that that part of the con- dition which stipulated for the payment from time to time, of the sums payable in lieu of the dividends still remained in force as to sd much of the sums as had accrued due, from time to time, within twenty years before action brought, the penalty of the bond not having been insisted upon in respect of sums accruing due earlier ; and that plaintiff, therefore, was entitled to damages in respect of so much of the second breach. Lord Campbell, C. J., in giving the opinion of the court, said: "The first question to be considered in this case is, whether there was evidence to go to the jury to entitle the plaintiff to a verdict«on the first issue on the second plea. "We think that there was. The defendants merely rejoined, as to the part of the plaintiff's replication to the second plea that the said action was not brought within twenty years' next after the said supposed acknowledgment of the said Thomas Wood in the said replication al- leged to have been made. Supposing that this casts upon the plaintiff the burden of proving that such an acknowledgment as is stated in the replication was made within twenty years next before the commence- ment of the action on the 4th of Septem- ber, 1844, we think that the evidence was 1 KiNDBESLEY, V. C, in Moodie v. Bannister, 4 Drew, 482. § 176.] SPECIALTIES. 443 which prevented a bond creditor coming and claiming his' debt at any time ; but the courts of law, and the courts of equity following them, quite sufficient for that purpose, as it proved an agreement between Wood and Buckley that Buckley should he boarded and lodged by Wood for the weekly sum of half a guinea, and that this weekly sum should go and be accepted in part satis- faction of the sums due from Wood to Buckley in respect of the dividends on the stock, till it should be replaced ; and, fur- ther, that this agreement was carried into effect and acted ujion till the death of Buckley, on the 11th of September, 1824, down to which time he was boarded and lodged by Wood ; the weekly payment, by the agreement, going and being received under the agreement in satisfaction of money then due and growing due from AVood to Buckley in respect of the divi- dends, the stock never having been re- placed. Therefore, if this evidence is believed, immediately before the death of Buckley, Wood made acknowledgment to him that the stock remained untransferred, and was then due; and Wood then made to Buckley part satisfaction on account of the bond, by making Buckley satisfaction on account of part of the sum of money then due and payable in lieu of the~divi- dends. There being such evidence, we draw from it the inference which I have stated ; and the action having been com- menced within twenty years, this issue must be entered for the plaintiff. The cases of Hart v. Nash, 2 C. M. & R. 337, and Hooper v. Stephens, 4 Ad. & El. 71, are in point to show that such a dealing is equivalent to a money payment. Worth- iugton V. Grimsditch, 7 Q. B. 479; Cal- lander V. Howard, 10 Cora. B.-290; Bevan V. Gething, 3 Q. B. 740 ; and the note in 1 Smith's Leading Cases, 321, on Whit- comb V. Whiting, 2 Dougl. 652, were also referred to during the argument on this point. And see Lucas v. Jones, 5 Q. B. 949. "The verdict upon the second issue raised on the second plea must likewise be entered for the plaintiff, as the dividends mentioned in the second breach became due within twenty years next before the com- mencement of the action. By the agree- ment between the plaintiff and the defend- ants, stated in the special case, either party is at liberty to raise any objection on the face of the record. And the defend- ants objected that the first replication to the second plea is bad in point of law, be- cause such an acknowledgment as is there stated would not take the case Out of tie statutes of limitations. To judge of this objection, we must look to see what the real contract was, as it appears from the bond and condition bearing date 5th De- cember, 1812. The condition contains a recital, that Wood wished to borrow from Buckley, and to take up at interest the sum of f 877 4s. Id. five per cent stock, and had applied to Buckley to advance Tiim the same, or the produce by sale thereof; which Buckley had agreed to do, being entitled only to as much as he would have received in case the stock had continued standing in his own name. It then re- cites that the stock had been sold out, and the produce thereof, amounting to £792 is. 2d. had been paid to Wood ; and that it had been agreed between them that the like sum of £877 is. Id. five per cents, should be replaced by Wood in the name of Buckley. The condition is then de- clared to be, that Wood should replace the stock on or before the fifth day of June, 1813; and pay to Buckley, in lieu of the dividends thereof, such sum or sums of money as Buckley would have been enti- tled to receive for the dividends of the £877 is. Id. in case the same had contin- ued standing in his name, at such time and times, in such shares and proportions, and in such manner, as the same divi- dends would have been payable to him in case the same had not been sold in man- ner aforesaid. The bond is conditioned for replacing a precise amount of stock on a fixed day, viz. 5th June, 1813, not for the payment of any given sum of money on that day, nor even for the payment of such a sum of money as would purchase the given amount of stock, but for replacing the stock itself. Such being the nature of the instrument on which the action is brought, we are to consider whether it comes within sect. 5 of Stat 3 & 4 Wm. IV. c 42, by which it is provided that, if any 444 STATUTES OP LIMITATION. [chap. XIV. held the doctrine of presumption, that after a certain lapse Of time payment must be presumed, and when an action was brought on a acknowledgment shall have been made, either by writing, or by part payment or part satisfaction on account of any princi- pal or interest being then due on any specialty, it shall be lawful to the persons entitled to the action to bring their action for the money remaining unpaid and So acknowledged to be due within twenty years after such acknowledgment by writ- ing or part payment or part satisfaction as aforesaid. The defendants' counsel insisted that this cannot extend to a bond condi- tioned for the rtplacing of stock, arguing that this is an act to be done, tod that the breach sounds in damages, depending upon the price of the stock when it ouglit to have been replaced or when the action is brought. " We are of opinion that this view of the 5th section is con-ect. The payment of suras of money in lieu of dividends which would have been payable if the stock had remained in the name of the obligee is not payment of interest ; neither is any sum of hioney thereby acknowledged to be due. Indeed the replication itself does not so allege ; but only that the said Thomas Wood made an acknowledgment that the said amount of stock remained untrans- ferredj by making part satisfaction on account of the money so payable in lieu of dividends. This averment certainly does not bring the case within the words of the 5th section, nor (as we think) within the spirit of it. If any authority was want- ing, we have the case of Gillingham v. Waskett, 13 Price, 43i, in which it was held that a plea of set-off to such a bond was bad, because it was not a bond for the payment of money. The argument, that, as the bond in question is plainly within the 3d section, it must necessarily be within the 5 th, is quite untenable ; for it is obvious that a bond conditioned to per- form the covenants of a lease in respect of repairs, or any other matter sounding purely in damages, would be within the 3d section ; and yet it would be impossi- ble by any ingenuity of construction to bring it within the 5th. As, therefore, the ilrst breach relates to the day of de- fault, viz. 6th June, 1813, Which was more than twenty years before the action, and the plea sets up that defence, to Which the replication is no answer in law, we are of opinion that, though the verdict on the rejoinder taking issue on that replication must be found for the plaintiff, the plain- tiff nevertheless is not entitled to any damages on that breach, on account of the insufficiency of the replication. " The second breach stands on very dif- ferent grounds. Though the remedy to recover damages for not replacing the stock is taken away by lapse of time, yet the condition so to replace it is not thereby wholly destroyed ; and that part of the condition which requires the payment from time to time of such sums of money as would have been payable by way of dividends if the stock hsld remained in the name of Buckley still continues in force. This last stipulation is distinctly expressed in the words of the condition, that Buckley was to receive such sums of money as he would havB been entitled to for dividends at such times and in such manner as the dividends would have been payable to him if the stock had not been sold out. The defendants' counsel contended that this extends only to the payment of the divi- dends down to the 5th June, 1813, when the stock was to be replaced. But down to that day there could only have been one dividend due ; and the language em- ployed seems to us clearly to extend (p all accruing dividends till the stock should be replaced. It was further contended that the stat- ute of limitations must run from the 5th June, 1813, when there was a forfeit- ure of the bond for not replacing the stock. But, as is laid down by Parkb, B. , in the recent case of Sanders v. Coward, 15 M. & W. 48, 56, ' although, on the first breach of the condition of a bond, the obligee may sue the obligor, and have judgment under Stat. 8 & 9 Wm. III. u. 11, as a security of a higher nature for future breaches, he is not bound to pursue that course. He may waive the right of action on the bond, in respect of the first breach, or any number of breaches, and be contented with the specialty security only foir future breaches, 176.] SPEQIALTIES. 445 bond or otker specialty, what the courts of law did with respect to a defence founded on a lapse of time was, that after twenty years the judge would direct the jury to presume payment.^ Of course that presumption, like any other, was capable of being rebutted by evidence, and the court held that evidence of an acknowledgment would be sufficient to rebut the presumption.^ In fact, it was impos- sible for a debtor against whom an action was brought to ask the com't to pronounce that the debt had been paid, when he had himself acknowl- edged the existence of the debt. It appears, therefore, to be a correct statement that, in the case of a specialty debt, the court could receive in evidence any acknowledgment of the alleged debtor in any shape, even when that acknowledgment was made to a third person, and that it was not necessary that such acknowledgment should amount to a new cause of action." ' and sue afterwards on a subsequent for- feiture, and assign that for a breach.' "For these reasons we are of opinion that the plaintiflf is entitled to judgment on the second breach." Tuckey v. Hawkins, 4 C. B. 665; Bealyu Greenslade, 2 C. & J. 61; HolUs V. Palmer, 2 New Ca. 713, and Savile v. Jackson, 13 Price, 715. 1 In Jackson v. Pierce, 10 Johns. (N. Y.) 414, where a mortgage had lain dormant from April, 1774, to March, 1802, it was held that, after deducting the period of the American Revolution, the lapse of time ■was sufficient to afford the presumption of payment. The presumption becomes ab- solute after the lapse of the period fixed by statute for prescription in analogous cases. If there is no entry or payment of interest, and being a presumption of law, it is in itself conclusive, unless encountered by distinct proof. Whitney v. French, 25 Vt. 663. In "Ware v. Bennett, 18 Tex. 794, a neglect to foreclose a mortgage for four years after it falls due was held not con- clusive ground for assuming, in favor of purchasers of the mortgagor's interest, that the mortgage had been paid. See also Ap- pleton V. Edson, 8 Vt. 241. 2 But this presumption is effectually repelled by a payment of interest within the statutory period before action brought, Hughes V. Blackwell, 6 Jones (N. C.) Eq. 73 ; and the admissions of a mortgagor that the mortgage debt is due are evidence to rebut the presumption of payment, especially where it does not appear that the true tenant had an interest before the admissions were made, Frean v. Drinker, 8 Penn. St. 520. The presumption of payment, so far aa mortgages are concerned, does not apply so long as the possession of the moilgaged premises is in the mortgagee. Croaker v. Jewell, 31 Me. 306. * In New Hampshire, in Howard v. Hildreth, 18 N. H. 105, it was held that when a mortgagor has retained posses- sion of mortgaged premises for more than twenty years after the execution of the mortgage, but has acknowledged the debt and paid interest upon it within twenty years there is no presumption that the debt is discharged ; and the same has also been held in South Carolina. "Wright V. Eaves, 10 Rich. (S. C.) Eq. 582. But in Gould v. "White, 26 N. H. 178, it was held that unexplained possession of the mortgaged premises for more than twenty years, may be left to the jury in connection with proof of partial payments and other evidence, as tending to show that the mortgage debt was fully paid. A pre- sumption of payment is not like an actual payment which satisfies the debt as to all the debtors ; it operates as a payment only in favor of the party entitled to the benefit of the presumption ; and, in case of the lapse of over twenty years from the time when a bond secured by mortgage becomes due, the presumption of payment of the mortgage will not, as to the purchaser and those claiming under him, be repelled by proof of a payment made by the mortgagor after he had conveyed the premises to another person. New York, &c. Ins. Co. V. Covert, 29 Barb. (N. Y.) 435. 446 STATUTES OF LIMITATION, [CHAP. XIV. Where specialties are brought within the statute, and no provision is made for keeping them on foot by an acknowledgment, an ac- knowledgment can have no effect in suspending the operation of the statute, because the action thereon is not founded upon a promise, but upon an obligation of a higher nature, and in order to keep it on foot the recognition of its validity and continuance must be of as high a character as the instrument creating the obligation. Payments, how- ever, as will be seen, post,^ may have this effect. 1 Chap. XVII., MOETGAGBS. § 177.] TOETS QUASI E CONTEACTU. 447 CHAPTER XV. Torts quasi e contkactu. Sec. 177. Time runs from Date of. Sec. 182. What requisite to establish 178. Conseq^uential Injury. Prescriptive Eight. 179. Negligence. 183. Trover. 180. Nuisances. 184. Trespass, Assault, &c. 181. Action must be brought before 185. Criminal Conversation. Prescriptive Right has been 186. Seduction, acquired. 187. Failure to perform Duty im- posed by Statute. Sec. 177. Time runs from Date of. — Tu the case of torts arising guasi e contractu, the statute usually commences to run from the date of tl;ie tort, not from the occurrence of actual damage. And ignorance of the facts on the part of the plaintiff will make no exception to the rule, though he discovers his injury too late to have a remedy. This win be the case, too, even where the defendant has betrayed the plain- tiff into permitting the time to elapse in fruitless inquiiies and negotia- tions. There may be cases where the injured party may bring trespass or trover, or may waive both, and bring assumpsit for the proceeds of the property when it has been converted into money, and in the last case the tortfeasor cannot allege his own wrong so as to bring time back to the day of the tort.'' And where a party has his election between trover and assumpsit, the fact that one remedy is barred will not defeat the other if the statute has not run upon that.* Thus, where the maker of a note which was outlawed asked the holder to see it, and upon its being shown, destroyed it, it was held that trover lay for the note, and that the measure of damages was the face of the note with interest, not- withstanding the fact that the statute might have been successfully interposed against an action upon the note itself.^ The ground upon which this ruling rests is, that it cannot be pre- sumed that, in an action upon a note or other obligation, so unlawfully destroyed by the maker, he would, although entitled to do so, have set up the statute to defeat it. " The onty question of law in the case," 1 EastlndiaCo. i>. Paul, 7Moo. P. C. C. DorreU, 2 Ld. Raym. 1216; Hitchin v. 85. See as to directors of insolvent bank, Campbell, 2 "W. BI. 827 ; Hambly v. Trott, Hinsdale v. Lamed, 16 Mass. 68. Cowp. 371. ■" 2 Lamb v. Clark, 5 Pick. (Mass.) 193. = Ivery v. Owens, 28 Ala. 641. But there must be an actual conversion. * Outhouse v. Outhouse, 13 Hun (N. Jones V. Hoar, id. 285. See Lamine v. Y.), 130. 448 STATUTES. OiF LIMITATION, [CHAP. XV. said Talcott, J., " arises upon the rule laid down by the judge as to the measure of damages. He charged the jury, in effect, that if they found a verdict for the plaintiff, she was entitled to recover the full face of the note, with interest ; that, notwithstanding the note was outlawed, it constituted a moral obligation sufficient to form a good consideration for a new note or new promise ; that if the defendant should choose to set up the statute of limitations in a suit on the note, the defence would prevail, but that the defendant, being a wrong-doer, was entitled to no presumptioaa in his favor. It is true that the general ru^e in an action for the conversion of a note of a third party is, that the damages are to be measured by the amount apparently due upon the note, but it may be shown that by reason of part payment, or the insolvency of the party obligated to pay the note, or by reason of the existence of some legal defence to the note, the plaintiff has not, in fact, sustained damages to the extent of the face of the note by reason of its conversion.^ It is, however, held that where the maker of the note has converted it, in an action brought against him for such conversion he cannot set up his own insolvency by way of mitigating the damages. The statute of limitations is a good defence if specially pleaded. If not specially pleaded, it does not defeat an action on the obligation. The question is, whether it is to be presumed that the defendant would set up that defence to this obligation in behalf of his sister, as was conceded, for borrowed money and no part of which had been paid. Could such a presumption be indulged as being the course likely to be pursued by a man under such circumstances where the outlawry of the note was occasioned by the indulgence of his sister?" "But could such a presumption be indulged in favor of this defendant? He was a wrong-doer, a wilful trespasser and spoliator, and is not only deprived of all presumptions in his favor, but all presumptions are against him according to the maxim, ' Omnia presumuntur contra spolia- torem.' It was upon this ground that the judge at the circuit put, his ruling on the question of the measure of damages, and we think it was a proper application of the rule." Sec. 178. Consequential Injury. — Although, as has been seen, time commences usually to run in a defendant's favor from the time of his wrongdoing, and not from the time of the occurrence to the plaintiff of any consequential damage, yet in order to produce this result it is nec- essary that the wrongdoing should be such that nominal damages may be immediately recovered. Every breach of duty does not create an individual right of action. And a distinction something similar to that which has been drawn by moralists between duties of perfect and imper- fect obligation may be observed in duties arising from the law. Thus a breach of public duty may not inflict any direct immediate wi-ong on an individual ; but neither his right to a remedy, nor his liability to be I Booth V. Powers, 56 N, Y. 22. § 178.] *rORTS QUASI E CONTRACTU. 449 precluded by time from its prosecution, will commence till he has suffered some actual inconvenience.^ But it is otherwise where there is a private relation between the parties, where the wrongdoing of one at once creates a right of action in the other ; and it may be stated as an invari- able rule that when the injury, however slight, is complete at the time of the act, the statutory period then commences, but, when the act is not legally injurious until certain consequences occur, the time com- mences to run from the consequential damage, whether the party injured is ignorant of the circumstance from which the injury results or not." ' Hurst V. Parker, 1 B. & Aid. 92 ; Tanner v. Smart, 6 B. & C. 603. 2 In Bank of Hartford Co. v. "Water- man, 26 Conn. 324, this question was care- fully considered and the cases reviewed. In that case an officer who had undertaken to attach real estate on mesne process made return that he had attached a cer- tain piece of land belonging to the defend- ant, and had left with the town clerk, as in such cases he was required by the stat- ute to do, a true and attested copy of the writ and of his return thereon. In fact he had left a copy of the writ and his return in the town clerk's office, describing an- other and different piece of land from that described in his return on the original writ. Both pieces of land, however, be- longed to the defendant, and either would have been sufficient to satisfy the plain- tiff's demand. The error was not discov- ered until the plaintiff had attained judg- ment and taken out execution, at which time more than two years had elapsed both from the date of the levy and that of the return. The debtor in the mean time had failed, and no property could be found on which to levy the execution. In an action to recover for the officer's default, the statute of limitation was pleaded, and it was held that the cause of action did not accrue either at the time of the service of the writ or at that of the false return, but from the time when the plaintiff had sustained actual damage by his failure to secure satisfaction of his execution. " Ig- norance of his rights," says Stokes, J., "on the part of the person against whom the statute has begun to run will not sus- pend its operation. He may discover his rights too late to take advantage of the appropriate remedy. Such is one of the occasional hardships necessarily incident VOL. 1.— 29 to a law arbitrarily making legal remedies, contingent on mere lapse of time. Brown V. Howard, 2 B. & B. 73; Sims v. Brit- ton, 5 Exch. 802 ; Short v. McCarthy, 3. B. & Aid. 626; Blair v. Bromley, 5 Hare^ 542; Battley v. Faulkner, 3 B. & Aid. 288. Strong, equitable considerations in favor- of the present plaintiffs seem, however, to grow out of the fact that they were actu- ally betrayed into ignorance of their rights- by the wrongful acts of the defendant himself; that they were misled by the very-' record to which they might and should rightfully refer for knowledge of their- rights, and of which the defendant him- self was the author, having verified it un- der his official oath. It is palpably unjust for the defendant to set up the statute as a defence under such circumstances ; to do. so is, in one sense, taking advantage of his own wrong: yet it is difficult to see that he is not, by the clear provision of the- statute itself, protected in so doing ; nor are we aware of any well-established doc- trine by -H'hich a party in a court of law- can be prohibited, on the score of equi- table estoppel, from defending himself un- der a public statute, designed to be of uni- versal operation in the matter of legal remedies. Lord Campbell properly sug- gested, relative to a controversy not unlike the present, that ' hard cases must not make bad law.' East India Co. v. Paul, 7 Moo. P. C. C. 85. At the Same time, if the dictum of Lord Mansfield, in Bree V. Holbech, Doug. 655, that 'there may be cases which fraud will take out of the statute of limitations,' were confirmed by direct adjudication, we should be reluctant to withold the application of the doctrine in the present instance. See Blair «. Bromley, ante. " These views are, however, immaterial 450 STATUTES OF LIMITATION. [chap. XV. In a case where the plaintiff had been damaged by the cutting away of to either party; as the cause of action, in our judgment, accrued — that is to say became complete and perfect — within two years next previous to the commencement of the present suit. Whether the true basis of the injury eventually suffered by the plaintiffs was the neglect to serve the jirooess, or the false return, it cannot be useful to determine, as neither of these facts singly, or both together, in our opin- ion, would be enough to constitute a cause of action. No right to sue became lodged in the plaintiffs until a certain con- sequence resulted from one or both of these breaches of duty by the officer. If this be so, that the damnifying conse- quences of the defendant's violation of duty are an essential ingredient in the .plaintiffs cause of action, the statute of limitations cannot begin to run until this • cause of action becomes complete. The oousequences are not, in such a case, mere aggravating circumstances, enhancing a ■legal injury already suffered or inflicted; nor are they the mere development of such a previous injury, through which develop- inient the party is enabled for the first time to ascertain or appreciate the fact of the .injury. But, inasmuch as no legal \vrong existed before, they are an indispensable element of the injury itself, and must 'therefore themselves fix, or may fix, the period when the statute of limitations shall commence to run. Authorities can hardly strengthen a proposition so mani- ifestly just. If we are wrong, some strictly ■legal injuries might never for a moment be capable of redress. For instance, so much time might accrue between the injurious ■ act of bringing a vexatious suit and its final tennination in favor of the defendant therein, that, if the original act were the entire gravamen of the latter's suit against the wrong-doer, he might be barred of his remedy before his right to redress ever vested in him for a single hour. But au- thorities are not wanting on this point. When the injury, however slight; is com- plete at the time of the act, the statute period commences, Wordsworth v. Harley, 1 B. & Ad. 391; but when the act is not legally injurious until certain consequences occur, the statute begins to run from the consequential injury, Roberts v. Eead, 16 East 215. In Gillon v. Bodington, 1 Car. & P. 541, it is agreed that the lan- guage of the English statute was even somewhat strained to make its construc- tion comport with this very just principle, the limitation by that enactment taking date from the 'fact committed,' and the court extending the meaning of this term so as to make consequential damage one essential part of the fact referred to. "It only remains, therefore, to determine whether a neglect to serve mesne process, or a false return of such process, is action- able in itself, or whether it becomes so only when a real injury follows from it. No distinction can be drawn between a neglect to serve and a false return in deciding the point presented. Lord Dbnman, in Wylie V. Birch, 4 Ad. & El. 566. " The case of Planck -o. Anderson, 5 T. R. 37, early settled the doctrine, that when an escape on mesne process took place, the only remedy of the plaintiffs was an action on the case for the conse- quential injury, and that, ' if no damage be sustained, the creditor has no cause of action.' (Buller, J.) " Of the contrary decision of Barker v. Green, 2 Bing. 317, we shall take occa- sion to speak hereafter. After the latter decision, in 1836, Lord Abingeh, at the exchequer chamber, in a colloquy witl, counsel, took strong ground against thci idea that an officer was at all events Jiablo in nominal damages for neglect to serve mesne process. BroWn v. Jarvis, 1 M. & W. 708. Two years after, the same court unequivocally denied the right of a plaintiff to subject an officer for an escape on mesne process, unless he had sustained actual damage or delay of his suit thereby. Williams v. Moyston, 4 M. & W. 145. Thoy expressly disapprove Barker v. Green, suggesting, perhaps incorrectly, that it is loosely reported. Lord Denman, while delivering the judgment of the Court of Queen's Bench in 1839, used this lan- guage : 'No damage is stated, unless some legal damage necessarily results from the neglect of the sheriff [to aiTest on mesne process]. We do not think that any such damage does necessarily result.' That is § 178.J TORTS QUASI E CONTRACTU. 451 certain pillars of coal which supported the surface, and which was ulti- to say, the act is not in itself legally injurious. The Supreme Court of New Hampshire early decided that a, sheriff is not liable to an action for an escape on mesne process, if he have the body at the return of the writ. Cady v. Huntington, 1 N. H. 138. In Clark v. Smith, 9 Conn. 379, 10 id. 1, which was twice before the Supreme Court of this State, and in which the court decided that a creditor's recovery against a sheriff for an escape on mesne process must be restricted to his actual damage, the doctrine of Justice Bullek, enunciated in Planck v. Anderson and quoted above, was cited by the court in full, without dissent. 9 id. 386. Upon the second trial of the canse, the jury found for the defendant, the court below having instructed them that the defend- ant was liable only for damages which the plaintiff had sustained by reason of the officer's neglect. This might have been construed as a direction to award no dam- ages whatsoever unless some actual injury was shown. The juiy at all events felt themselves at liberty to act under such a rule ; and although the case was not brought before the Supreme Court on ac- count of a verdict against evidence, j'et that tribunal seem freely to have assumed that the judge's charge to the jury was susceptible of the construction just sug- gested, and thereupon indorse the verdict. Judge Bissell says : ' The jury were directed to give damages commensurate with the loss sustained by the ofilcer's neglect. For aught that appears, they have done so; and neither the principles of justice nor any rule of law demands of us that we should interfere with their ver- dict.' We must believe that the law is settled -that actual damage is an essential element in a cause of action relating to a negligent service or false return of mesne process. Eoscoe's Nisi Prius, 609 ; 2 Saund. PI. & Ev. 878. Something may properly be said of decisions, which our examination of this case has brought to light, and which have an aspect adverse to the views adopted by us. Before dis- cussing them, it is well to remark that a distinction is often drawn in the books between a cause of actton growing out of a nonfeasance or misfeasance relating to mesne process, and the same when they concern writs of execution. We believe the difilerence between the two cases to be practical rather than theoretical. We have no doubt that actual damage must be the basis of recovery in both, Wylie V. Birch, i Ad. & El. 566 ; but that it is presumed to be incident to one and not to the other. The burden of proof lies on the plaintiff in the latter instance to show some actual damage ; in the fonner, on the defendant to show that there has been none. It has been held that if an officer, charged with a false return on iinal pro- cess, can prove that after the return the debtor became a legal bankrupt, so that the holding of the body could have been of no avail to the creditor, a complete de- fence is established; and that a plea in bar, setting up the bankruptcy only, is a com- plete answer to the action. Wylie v. Birch, supra. Now it is idle to say that proof of actual damage is not necessary in the case of an omission to execute final process, when the disproof of such damage is a perfect defence. If a trespass is made upon land, the act is legally injurious ; nom- inal damages, at least, must be awarded. The trespasser cannot establish a complete defence by proving there was no real loss to the plaintiff. StUl, courts have some- times ruled that they -will presume some actual damage to be necessarily incident to a breach of duty in reference to final process. The body being held by an ex- ecution for the payment of the debt, not for its security merely, they have regarded an escape, even for a short time, as sus- pending the debtor's inducement to per- form his duty of immediately paying his obligation, as taking away from the cred- itor, for the time being, that which the law gives him as his satisfaction, and as invading his right to the constant, un- interrupted detention of the debtor's body. But no such inference, however regarded, arises in the case of a neglect to retain the custody of a debtor on mesne process. The debt may, notwithstanding, be perfectly secure, and enforced as promptly as if the security was constantly under the control of the officer. 452 STATUTES OP LIMITATION. [chap. XV. mately injured in consequence, it was considered that time commenced "To return: Barker v. Green, 2 Bing. 317, was an action for a failure to arrest on mesne process. The jury, iiuding no actual damage, rendei'ed a verdict of one farthing. An attempt, with a view to costs only, was made to set aside the ver- dict. The court refused the motion, hold- ing that ' if there was a hreach of duty, the law must presume some damage.' In Betts 13. Norris, 21 Me. 314, a decision of the Supreme Court of Maine, much noticed at the bar, the opinion of the majority of the bench seems to rest on the same idea ; that a breach of official duty is necessarily a violation of the individual legal rights of the person in whose favor the duty is to be performed. We cannot assent to the sweeping doctrine of these cases. It would invite interminable and preposterous liti- gation. "We apprehend, as has been suggested by the counsel for the plaintiffs, that a distinction is to be observed between breaches of public duty and breaches of duties to individuals ; such, for instance, as those created by contract, whereby each party enters into and defines for himself an immediate obligation to the other. In the latter case, the breach of such an obli- gation is a direct and immediate wrong to the other, so that whether any evil con- sequences follow, or whatever consequences follow, the cause of action dates from the wrong, which will be treated as the cause of action, whether the plaintiff sues in tort or contract. For instance, if an attorney nfeglect his client's business in such a man- ner as to break the implied contract be- tween them, although a loss may not occur for years, a complete right of action accrued when the duty was violated; and the sub- sequent loss merely aggravates the injury. And whether he be sued in assumpsit or in case, the breach of duty will always be the injury for which he must respond. Howell ■0. Young, 5 B. & 0. 259; Short v. McCar- thy, supra ; Brown v. Howard, 2 B. & B. 73; Wilcox v. Plummer, 4 Pet. (U. S.) 172. But where the duty is of a public nature, there is no direct relation between the public officer and the party in whose behalf the duty is to be performed. If it were so, then there should be the impli- cation of a contract between them, and non- performance be actionable in assumpsit. Yet it is clearly settled that the latter form of action cannot be sustained in such a case. Lovell v. Bellows, 7 N. H. 375, 388. The duty violated is primarily a duty to the public ; the violation is therefore unlawful ; and when its consequences are the invasion of an individual right (and then only) it becomes a proper subject of redress by him. The duties imposed upon public officers are analogous to those of moral obligation. Their violation is not necessarily a legal injury to those in whose favor they exist. They must afffect some right such as the law is wont to redress, before they can be made the subject of a suit. It is the duty of a municipal corporation to keep certain highways free from obstruction. The duty is to the public for the benefit of every individual in the community. If an obstruction is negligently permitted to exist, it may be said that, in a sense, a duty to each indi- vidual is violated. But it is not com- petent for every inhabitant of the vicinage thereupon to bring his action for the breach of duty to himself; not even if he is put to some trivial inconvenience by the obstruction. If he voluntarily or negli- gently throws himself in the way of being injured by it, he cannot recover. Butter- field v. Forrester, 11 East, 60. The mere violation of the public duty, although the duty is to him indirectly, involves no- cor- relative legal right on his part to sue for such violation. " It is said familiarly that rights and duties are reciprocal. This is, in a moral sense and in a properly understood legal sense, true. But it is evident from the illustration just employed that there is no such legal reciprocity between the general duties of public officers and the rights of parties in whose behalf the duties are to be performed, that the right is always actionable when the duty is violated. In the case of the highway, a person must bo injured in reference to some other right than that which is correlative to the mere duty of keeping tlie highway clear for his benefit, — in his right to his health, or limbs, or property — before he can seek § 178.] TOKTS QUASI E CONTEACTU. 453 to run against the plaintiff on the occurrence of the damage, and not legal redress: Then he will have suffered a consequential not an immediate injury, and can resort to his action on the case. An officer neglects to serve a subpoena. It would be said to be his dut)' to serve all subpoenas. A plaintiff who gave it to bJTn goes to trial ; the witness voluntarily ap- pears, and a full recovery is obtained. Could a suit be sustained by the plaintiff for the nonleasance of the officer ? Is the plaintiff's right legally coextensive with the officer's duty? Or must some other right of the plaintiff be affected by the neglect, to enable him to sustain an action? A writ of attachment is served without the plaintiff's consent, as a summons. The defendant is perfectly responsible, and the plaintiff, without delay or embarrassment, obtains complete pecuniary satisfaction. Can he resort to the officer for the breach of his duty in not complying with the mandate of the writ ? An assessor's duty is to mate a correct assessment in the case of every taxpayer. This is the obligation he owes to the public His conduct is nnlawful if he neglects it. If a taxpayer is assessed too little, the public duty is violated ; can the taxpayer sustain a suit therefor ? Or, even if his property is as- sessed too much, must he not wait until- some other right than that which corre- sponds to the official duty (snch as his right to his property, which may not be taken for an illegal tax) is violated before he can sue? To hold that every non- feasance and misfeasance of an officer is actionable jw sc in favor of the party who is the special subject of the duty neglected or violated, would be a souree of infinite confusion. We concur in the proposition of Mr. Justice Shepley, whose dissent- ing opinion in Betts r. Norris, ante, seems to ns to contain reasoning more cogent and conclusions more just than those of the majority of the court, that ' a mere vio- lation or neglect of duty enjoined by law, or otherwise imposed without contract, unless accompanied or followed by an in- jury to some person, cannot be the foun- dation of an action at common law.' Again, it would seem that for the justi- fication of our general position in' the present case, a strict reciprocity between public duties and individual rights might be safely conceded. The term ' dutj- ' may be used in a sense too strict to stand the test of legal criticism. AVe say fami- liarly, that it is an officer's duty to serve process, — to obey the mandate of a writ. Now it is his function to do so, but is it necessarily his duty, in an absolute sense 1 If not, then there is no absolute right on the pait of a suitor to the performance of the function. If the right and duty were absolute, that a writ must be served, — served according to its literal mandate, and indorsed with a true return, — then an officer could not defeat an action for an escape on mesne process, by showing that the plaintiff had no lawful claim against the debtor. Yet, that he can is an ele- mentary principle. Alexander i: Macauley, 4 T. E. 611. >'ow the real right which the law confers upon a suitor, and the real duty it imposes on an officer, is that the claim shall be enforeed, the debt collected, through the law's process. The creditor has no absolute right to require that the exact amount of property set forth in his writ shall be attached. If the officer attaches but a tenth of that sum and this is sufficient to cover the plaintiff's debt, he has performed his duty and infringed upon none of the suitor's rights. The same course of reasoning would show that the plaintiff has no absolute right to a correct return. For instance, if its falsity should never become known to the adverse party, and an execution should be levied upon the property originally taken and should legally condemn it for the plaintiff's ben- efit, no action would lie. It is but another step in a perfectly natural chain of reason- ing to say that the suitor has no absolute right to require that any of the defendant's property shall be attached ; although it is the officer's legitimate function to obey the writ. His right is that the property of the defendant, or a certain portion of it, which was in reach at the time the attach- ment should have been served, or its equiv- alent, shall be forthcoming at the time of the issue of the execution, in case the ex- ecution debt is not paid on the officer's demand. So far as the attachment is con- cerned, therefore, the creditor is only enti- 454 STATUTES OF LIMITATION. [chap. XV. from the date of the removal of the pillars.^ So where the trustees of a turnpike companj' negligently made and continued in their road im- proper catchpits for water, so that on some occasions the water flowed over and injured the plaintiff's land, it was held that the continuance of -the catchpits afforded a new cause of action every time such damage was caused, and that the statute only ran on each cause of action from the time it arose.'' In an action for maliciously opposing the discharge of an insolvent debtor, time was considered to run from the date of the opposition, and not from the cessation of imprisonment.' But in an action for false Imprisonment the statute does not begin to run until the imprisonment ends.* But in an action for malicious prosecution oir arrest, the stat- tled to rec^uire that the officer shall pro- coed at his peril if he omits to attach. A suitor's right is not, then, a right to literal forms of procedure, but to enforce his judgment and collect his debt by law. Unvil this right is injured, no right is in- jured. Until the offioer fails to bring the property of the debtor within the power of the law's final process, founded upon a creditor's valid judgment, he has been guilty of no violation of duty in a legal view. So that, if we suppose a direct relation between the plaintiff and the officer — a legal reciprocity of right and duty between them, and concede that damages are to be presumed where the former is invaded or the latter violated, it is clear that neither of. these incidents occurs until something more than a neglect to attach or an incorrect return is impu- table to the officer. The doctrine to which our course of reasoning has brought us is not novel as a general proposition. Lord Tenterden, in Lewis v. Morland, 2 B. & Aid. 6i, previous to the decision of Barker ■V. Green, ante, used this language : ' Sup- posing the sheriff to be guilty of a breach of duty in letting the party out of custody, it does not thence follow that any action can be maintained against him for such breach of duty." The opinion of Lord Uenman, in the case of Eandell v. Whipp, 10 Ad. & El. 719, contains this passage : ' We agree with the case of Brown v. Jar- vis, that it is the duty of the sheriff to arrest the party on the first opportunity that he can ; but we also agree with the court in that case, that some actual dam- age must be shown in order to make the negligence of the sheriff In that respect a cause of action.' In a later case, the same judge says : ' When the clear right of a party is invaded in consequence of an- other's breach of duty, he must be entitled to an action against that party for some amount.' Clifton v. Hooper, 6 Ad. & El. 468." The court held that the statute of limitations took date from the time of the consequential injury, and not from the misfeasance or nonfeasance of the officer, and gave judgment for the plaintiff. See also Roberts v. Read, 16 East, 215, and Gillon V. Boddington, 1 C. & P.. 541; and see Whitehouse v. Fellowes, 10 C. B. N. s. 765; and Denys v: Shuckburgh, 4 Y. & C. 42. '■ Bonomi v. Backhouse, 5 Jur. N. s. 1345, 9 H. L. 503. This case was decided on appeal by LordsWESTBURY, Brougham, CRANWORTH,WENSLEyDALE, and CwiLMS- FOED, with the assistance of six of the " Whitehouse v. Fellowes, 10 C. B. N. s. 765. 8 See Nickliu v. Williams, 10 Ex. 259; Violett V. Sympson, 8 El. & Bl. 344. * Dusenbury v, Keiley, 8 Daly (N. Y. C. P.), 159. In Eggington v. Mayor of Lichfield, 32 Eng. L. & Eq. 237, the plain- tiff was imprisoned upon an illegal warrant, and upon an application to court an order was made for his discharge. Previously to the making of the order another warrant had been given to the jailer by the parties who obtained the first warrant, and the jailer detained the plaintiff upon this war- rant after the granting of the order. The last warrant was subsequently adjudged il- 179.] TORTS QUASI E CONTEACTtT. 455 ute begins to run as soon as the process is served or the arrest is made.^ In the case first cited in the preceding note,' Pakke, B., referring to the above cases as to consequential damage, said, " It remains to con- sider some cases cited and much relied on, showing that the limitation of actions under particular statutes directed to be brought within a cer- tain time 'from the fact committed,' dated from the period when con- sequential damage was occasioned, and therefore it was said that the damage was the cause of action. These statutes mean no doubt the limitation to run from the act, that is the cause of action. But on examining these cases they do not appear to be for injuries to rights, ■which this is, but solely for consequential damages, where the orig- inal act itself was no wrong and onlj' became so by reason of those damages." An important distinction exists between actions arising from torts and upon assumpsit, in that the right to the former cannot be revived by acknowledgment. 3 Sec. 179. Negligence. — In actions for injuries resulting from the neg- ligence or unskilfulness of another, the statute attaches and begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained.* legal. Held, that the impi-isonment under the first warrant was terminated by the order, and that the statute of limitations began to run from that period. 1 Pratt V. Page, 18 Wis. 337. " Nicklin ». Williams, ante. ' Galligher v. Hollingsworth, 3 H. & M. (Md.) 122; Goodwyn v. Goodwyn, 16 Ga. 114. * Crawford v. Goulden, 33 Ga. 173; Wilcox V. Plummer, i Pet. (U. S.) 172; The Governor v. Gordon, 15 Ala. 72; Bank of Utica V. Childs, 6 Cow. (N. Y.) 238; Niagara Bank v. Plumb, 9 Wend. (N. Y.) 287; Murdis v. Shackleford, 4 Ala. 495; Brown v. Howard, 2 B. & B. 73; Thurston V. Blackinton, 36 Ind. 501. In Bank of Utica V. Childs, 6 Cow. (N. Y.) 238, a notary neglected to charge a prior indoi-ser by giving the requisite notice of non-pay- ment, &c., and the bank was compelled to pay damages. The action in favor of the bank not having been commenced until more than six years after the negligent act was done, was held barred by the statute, because its right of action against the notary accrued immediately on the omis- sion, and was not dependent upon the pay- ment of damages by it. In the case of Wilcox V. Plummer, ante, a note was placed in the hands of an attorney for col- lection, and he neglected to join an in- dorser in the action. Subsequently he sued the indorser, but, because of a mis- take in the process, it finally failed, and the statute having then run as against the indorser, and by reason thereof his liability upon the note ceased, the question was, whether the cause of action arose against the attoi'ney when the mistake was made, or from the time when the damage was finally developed. The court held that it arose and became complete when the mistake was made, and as, dating from that period, the statute had run in his favor, he had judgment in his favor in the action. In Dickinson r. Mayor, &c., 92 N. Y. 584, the plaintilTs complaint alleged that the defendant "improperly, carelessly, neg- ligently, and unlawfully suffered ice and snow to be and remain upon the cross- walks," at the intersection of two streets in the city of New York ; that in conse- quence thereof, plaintiff, while passing over said crosswalk, was thrown to the ground and injured, and plaintiff asked to recover the damages sustained. Held, that the 456 STATUTES OF LIMITATION. [chap. XV, The gist of the action is the negligence or breach of dnty, and not the consequent injury resulting therefrom.^ But where a person or corpo- ration is primarilj- liable for the negligence or misfeasance or malfeasance of another, the statute does not begin to run upon the remedy of such person or corporation against the person guilty of such negligence or breach of duty until the liability of such person or corporation has been finally fixed and ascertained ; ^ because, in the latter case, the gist of the action is the damage, while in the former it is the negligence or breach of duty. In actions for negligence, the jury are not restricted to damages accrued up to the time of action brought, but maj' include all which have accrued up to the time when the verdict is rendered, as well as such as are likely to result in the future.^ There seems generally to be no distinction as to the time when the statute applies between actions action was "to recover damages for a per- sona] injury resulting from negligence " within the meaning of the provision of the code, limiting the time for the commence- ment of such action to three years. Irvine v. Wood, 51 N. Y. 228 ; Clifford V. Dam, 81 id. 56 ; Sexton v. Zett, 44 id. 431 ; Creed v. Hartmann, 29 id. 591 ; Con- greve v. Smith, 18 id. 82, distinguished. The code providing that where " a de- mand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make a demand is complete," is appli- cable to actions against the city of New York. Such an action is not saved from the operation of said provision by the provi- sion declaring that any special provision of the statute remaining unrepealed, . . . which is applicable exclusively to an ac- tion against said city, shall not be affected by the code. The provision of the charter of said city of 1873, providing that no action shall be maintained against the city "unless the claim upon which the action is brought has been presented to the comptroller, and he has neglected for thirty days after such presentment to pay the same," was in- tended for the benefit of the city, not of claimants, and does not deprive the city of the benefit of the said provision, as to the time, when the statute of limitations begins to run. It was held that, as it was set forth in the complaint that the accident happened in January, 1877, and that the claim was presented to the comptroller in April, 1881, the action was barred. Fisher v. Mayor, &,o., 67 N. Y. 76, distinguished. In Watson v. Forty-Second Street F. R. E. Co., 93 N. Y. 522, the plaintiff was in- jured by reason of the defendant's negli- gence in April, 1877. She commenced this action to recover damages in January, 1880. Held, that the statute of limitations was not a bar, as the case was governed by the three years' limitation prescribed by the code, not by the one year's rule previously existing ; that the case was not within the exception in the provision of the code, making the rule of limitations therein prescribed the only one thereafter appli- cable to civil actions, except where a per- son was entitled, when the code took affect, to commence an action, and did so within two years thereafter. Acker v. Acker, 81 N. Y. 143, distin- guished. 1 Thurston ». Blaokinton, ante ; Gustin V, Jefferson, 15 Iowa, 158; Northrup v. Hill, 61 Barb. (N. Y.) 136; Lathrop V. Snellbaker, 6 Ohio, N. s. 276; Argall v. Kelso, 1 Sanf. (N. Y.) 98; Ellis v. Kelso, 18 B. Mon. (Ey.) 296; Sinclair v. Bank, 2 Strobh. (S. C.) 344; Cook v. Eives, 13 S. & M. (Miss.) 328; Battley v. Faulkner, 3 B. & Aid. 288;. Howell v. Young, 5 B & C. 259. 2 Veazie v. Penobscot R. E. Co., 49 Me. 126. ' Wilcox V. Plummer, write. § 180.] TORTS QUASI E CONTKACTTJ. 457 for misfeasance or malfeasance and any ordinary action on the case.* But in actions of this class a question may arise as to the exact time when the default arose, and, as a right of action does not exist until default, this question is material. Questions of this character most fre- quently arise in actions against public officers, and the rules relating thereto, so far as any have been settled, have ah-eady been given ante, in the section relative to sheriflFs. Where a statute provides that, unless a claim for damages done by reason of the negligence or wrongful act of a person or corporation, is made within a certain time, as, within thirty days, three months, &c., if a claim is made within that time, the action is not barred, if brought before the statute of limitations has run upon the class of actions to which it belongs.^ Sec. 180. Nuisances. — The rule in reference to acts amounting to a nuisance is, that every continuance is a new nuisance for which a fresh action will lie, so that, although an action for the damage from the original nuisance may be barred, damages are recoverable for the six years preceding the bringing of the action, provided such a period of time has not elapsed that the person maintaining it has acquired a pre- sumptive right to do so.^ Thus, in the case first cited in the last note, appeared that on account of defects in the locks, gates, walls, &c., of said canal, more water was diverted from the river than the superintendent of public works, in the exercise of his discretion, required for the use of the canal, and more than was necessary for navigation, and that if said structures had been in condition not to leak, the claimant, a riparian proprietor and mill-owner on the river, would have had the use of a portion of the surplus water so diverted. Held, that the claimant made out a case which would have created a legal liability as against an individual ; and so, that under the act of 1870, he was entitled to his damages ; and, that the State was not the sole judge of the neces- sity and of the amount to be taken, but it was incumbent upon it to prevent leakage or other wastage to a more than fair and reasonable extent ; and that a finding of negligence on the part of any officer of the State was not necessary. The diversion for which the claim was made was for the years 1882, 1883, and 1884. The claim was filed in August, 1884. Held, that the statute of limita- tions was not a bar to the claims for 1883 and 1884, that each day the unlawful use was continued a new cause of action arose ; and, that as no recovery could be had for future damages, a failure to file a claim 1 Baker v. Atlas Bank, 9 Met. (Mass.) 182; Hinsdale v. Larned, 16 Mass. 68; Mather ». Green, 17 Mass. 66; Fisher v. Pond, 1 Hill (N. Y.), 672. 2 Railroad Co. v. Bayliss, 74 Ala. 150. Of course, such actions belong to the class called at the common law, "actions on the case," Newton o. N. Y. & N. E. K. R. Co., 56 Conn. 21. * Staples V. Spring, 10 Mass. 72; Holmes t. Wilson, 10 Ad. & El. 503; Bowyer v. Cook, 5 De G. & S. 236; Mc- Connell «. Kibbe, 29 111. 483. Silsby Manuf. Co. v. State of ITew York, 104 N. Y. 562. The act of 1813, incorporating the S. L. N. Co., gave to the corporation the right to use only so much of the waters of Seneca River, as are needed for the purpose of navi- gation on its canal, and forbade its use by it for any other purpose. The State hav- ing acquired, under the act of 1825, "the stock, property, and privileges belonging and appertaining to" said company, and only that, has no authority to use any more of the waters of said river than are neces- sary for the purposes of navigation, and has the right to use them only for that purpose. Upon trial before the Board of Claims, of a claim for an unlawful diversion by the State of the waters of said river, it 458 STATUTES OF LIMITATION". [CHAP. XV. in an action brought to recover damages for injuries sustained by reason of the erection of a dam, which set back the water of a stream and overflowed the plaintiff 's land, it was held that while the plaintiff was barred from recovering damages arising from the erection of the dam, he might recover for its continuance. The same rule was adopted in an English case,^ where the defendants as trustees of a turnpike-road, who had erected buttresses to support it, on the plaintiffs land, were held liable for its continuance there, although the}- had already- been sued, and responded in damages for its erection.'^ But while this is the rule as to nuisances of a transient rather than of a permanent character, yet, when the original nuisance is of a permanent character so that the damage inflicted thereby' is of a permanent character, and goes to the entire destruction of the estate affected therebj', or will be likely to con- tinue for an indefinite period, and during its existence deprive the land- owner of any beneficial use of that portion of his estate, a recovery not only may but must be had for the entire damage in one action, as the damage is deemed to be oj-iginal ; ' and as the entire damage accrues from the time the nuisance is created, and onlj- one recovery can be had, the statute of limitations begins to run from the time of its erection against the owner of the estate or estates affected thereb.y.* Thus, in the case last cited, the plaintiff was the owner of certain lots in Council Bluff's. In 1859, the lots were crossed by a meandering stream called Indian Creek. In order to remove the stream from one of the streets of the city, the city determined to and did cut a ditch along the side of the street and across tiie end of the plaintiff's lots. The stream was turned into the ditch. This was done in 1859 and 1860. The ditch was extended to a count}' ditch, but was not cut as deep as the county ditch, into three feet ; in consequence of which, owing to the nature of the soil, a cavity was created at the point where the city ditch fell into the county ditch, which cut back up the stream. It reached the plain- tiff's lots in 1866, when he began to sustain damages from the action of the water. Prior to the commencement of the action against the city for damages, the ditch had become fifty feet wide and- twelve feet deep ; and to arrest the action of the water and confine it within its within the time limited by statute, after a second action for continuing them there, the commencement of the unlawful diver- and It was held that he could recover, sion, had no effect on the rights of the as the continuance of the original nuisance claimant to recover damages sustained amounted to a new nuisance each day it within the two years limited. was continued. 1 Holmes v. Wilson, 10 Ad. & El. » Troy ti. Cheshire R. R. Co., 23 N. H. 503. 101; Anonymous, 4 Dall. (U. S.) 147; 2 McConnell v. Kibbe, 29 111. 483. In Powers v. Council Bluffs, 46 Iowa, 652. Bowyer v. Clark, 4 De G. & S. 236, the See also Kansas R. R. Co. i». Mihlman, 1 7 defendant placed stumps and stakes in a Kan. 224. ditch on the plaintiff's land, and the plain- * Powers v. Council Bluffs, ante ; Wood tiff, having recovered against him for plao- on Nuisances, 889. ing the stumps and stakes there, brought § 180.] TORTS QUASI E CONTRACTTJ. 459 proper channel the plaintiff built a wall, which accomplished the desired result. The statute of limitations being pleaded, the court below directed the jury to find a verdict for the defendant, which was sustained upon ap- peal. ^ Without desii-ing or in any measure intending to question the * Adams, J., in delivering the opinion of the court, said: " Xo suit could have been maintained until some actual injury ivas caused to the plaiutiff by the action of the water, resulting from the improper con- struction of the ditch. But in 1866, if not earlier, the plaintiffs premises began to be injured, and he then of couree had a right of action. The only question in this case is as to the character of the damage. Was it, as it occurred from day to day, new damage ? If so, the plaintiff was entitled under the evidence to recover some dam- age. Although his right of action as to a part of the damages which he had sus- tained might be barred, we have to dis- tinguish them as between what must be regarded as original damages and what may be regarded as new damages. In 3 Bl. Com. 220, it is said that every con- tinnauce of a nuisance is held to be a fresh one, and that, therefore, a fresh ac- tion will lie. In Stapls v. Spring, 10 Mass. r2, action was brought to recover for damages which, it was alleged, the plaintiff had sustained by reason of his land being overflowed by defendants' mill- dam. It was held that, while plaintiff was barred from recovering for damage caused by the erection of the dam, he might recover for damage caused by its continuance. In MeConnell f. Kibbe, 29 111. 483, the same doctrine is recognized. The defendant owned the lower story of a building, the plaintiff the upper stories. The defendant removed in his story a par- tition brick wall, whereby the plaintiff's part of the b\iilding was injured. "Walker, J., said: 'The continuance of that which was originally a nuisance is regarded as a new nuisance.* As, however, the suit was brought for the creation of the nuisance and not its continuance, it was held that plaintiff could not recover, the cause of action for the creation of the nuisance having become barred. In Bowyer v. Book, 4 M. G. & S. 236, the plaintiff, hav- ing previously recovered against the de- fendant for placing stumps and stakes ou his land in a ditch, brought suit for con- tinuing them in the ditch. It was held that he could recover. In Holmes v. Wil- son, 10 Ad. & El. 503, the defendants, as trustees of a tuinpike road, had built but- tresses to support it on the plaintiff's land. Although the plaintiff had already recov- ered for the creation of the nuisance, it was held that he might recover for its con- tinuance. The dividing line between the cases above cited and those in which the damages are considered as having all ac- crued at once as a part of the original injury is not always clearly distinguishable. In the Town of Troy v. Cheshire K. R, Co., 1 N. H. 23, 83, the defendant had built its road partly over the highway. VpTiile it was held that plaintiff could recover only for the damages which had been sustained at the time of the commencement of the suit, yet it was considered that all the damages which plaintiff had sustained, or could sustain, accrued when the defendant's road was built, and that only one recovery could be had. This case is similar to the one last above cited, but distinguishable from it. The difference, however, consists in the fact that the railroad bed was deemed a permanent structure, in such sense that it was not to be presumed that the com- pany would remove it. The turnpike but- tresses were not of such character. So, too, in the case where the defendant had placed stumps and stakes in the plaintiffs ditch, the obstruction was not permanent. In the Town of Troy r. Cheshire Bailroad Co., above cited. Bell, J., said: 'Wher- ever the nuisance is of such character that its continuance is necessarily an injury, and where it is of a permanent character that will continue without change from any cause but human labor, thera the dam- age is an original damage and may be at once fully compensated.' " The principle thus st.ited is snfiicient to enable ns to tread our way through any apparent difficulties which surrounded our 4G0 STATUTES OF LIMITATION. [chap. XV. general doctrine announced b}- the court, that, when the damage is com- plete by the original act creating the nuisance, the statute begins to run path. In the light of it we can see that in a case of overfiow from a mill-dam the in- jured party should be allowed to maintain successive suits. Somewhat depends on the way the dam is used. The injury, therefore, is not uniform. But, what is of controlling importance, the dam if not maintained will go down, as surely as the sun will go down, and the nuisance of it- self will come to an end. Its duration will be determined by freshets and other forces which are contingent and therefore incalculable. It may, indeed, be so built that it should be regarded as permanent. In such case it is said that the damage should be considered and treated as origi- nal. The Town of Troy v. Cheshire Rail- road Co., above cited. "While no infallible test can be applied to enable us to determine whether a struc- ture is permanent or not, inasmuch as nothing is absolutely permanent, yet, when a structure is practically determined to be a permanent one, its permanency, if it is a nuisance and will necessarily result in damages, will make the damages original. " If we apply the principle above stated to the case at bar, we must hold that the damages were original. The plaintiff's ground of complaint is that the ditch was improperly constructed. As constructed it resulted in the excavation of the plain- tiffs lots. The damage consisted, not in excavating the lots, but in doing an act which resulted in their excavation. "The result too was a necessary one, the ditch remaining as constructed. The cause of the difiSculty was a permanent one in that it would not grow less unless remedied by human labor. The case, there- fore, is .strictly within the rule applied in the Town of Troy v. Cheshire Railroad Co., above cited. Nor does the rule atlbrd any difficulty in the assessment of damages, which is another test for determining the question under consideration, or rather the consideration of the difficulty of assessing damages is another way of applying sub- stantially the same test. If the cause of the injury is permanent, the damages can be foreseen and estimated. If the cause of the injury is not permanent, if it depends upon human volition (as the maintenance of 11 mill-dam), the damages cannot be foreseen and estimated. Whure the but- tresses were placed on the plaintiff's land, in Holmes o. Wilson, ct al., above cited, the damages could not be foreseen and es- timated. The defenders were trespassers, and, the structure not being necessarily permanent, it was not to be presumed that the defendants would continue the tres- pass. The presumption was that it would be discontinued. But, there being no pre- _ sumption as to the time when it would be discontinued, the damages could not be foreseen and estimated. " The same principle lies at the founda- tion of the dictum in McConnell v. Kibbe, above cited, where the defendant owned the lower story and the plaintiff the upper stories of a house, and the defendant re- moved 11 partition brick-wall which was necessary for support. It could not be presumed that the defendant would allow the superincumbent stories to fall. It was to be presumed, therefore, that ho would arrest the difficulty. With such a pre- sumption the damages could not be fore- seen and estimated. ' ' When the fall in the stream in ques- tion had moved back from the county ditch to the plaintiff's lots and the creek ditch began to deepen and widen along those lots, as it had been doing for six years on the land below, no especial foresight* we apprehend, was needed to predict the re- sult. At all events, it must be assumed that that may be foreseen which results from the ordinary and constant forces of nature. "The plaintiff's damage was suscepti- ble of immediate estimation. No lapse of time was necessary to develop it. It was the difference between the value of his lots as they would have been if the ditch had been properly constructed, and the value of them as they were with the ditch as it was. To reach this value, regard might be had to the reasonable cost of tire remedy for the trouble, if the cost would not be greater than the probable damage which would ensue if no remedy were ap- plied. The remedy, whether a wall or § 180.] TOETS QUASI E CONTKACTU. 461 from that time ; yet, in the particular case under the facts stated, we cannot assent to the ruling of the court, that the plaintiflfs remedy was full and complete where damage first intervened from the defendant's acts. According to the statement of the court, the damages resulted from day to day by the widening of the ditch, until, from a ditch of a few feet in width, it extended to a width of fifty feet, and might, except for the act of the plaintiff by the erection of the wall, have extended indefi- nitely. To say that the plaintiff was bound to know from the first injury to the estate that this result, in the very nature of things, would ensue, is neither logical nor natural ; and, without stopping to elaborate upon the matter, we must say that it is not within the reason of the case upon which the court relied.^ In that case the damage was complete when the act creating the nuisance was completed ; but in the Iowa case the damage was progressing from day to day, and could not have been fore- seen. The injurj', as 'first existing, did not destroy the plaintiff's estate, nor inflict such damage as could be said to be permanent or continuous. In the case last referred to,^ and which may be said to carry the doctrine to the very extreme limit, the original act creating the nuisance at once produced all the damage that ever could result from the act, and de- stroj-ed all that part of the estate of the plaintiff for all practical pur- poses, so that when the act was completed all the damage that could be effected thereby was consummated ; but in the Iowa case, while the original act was unlawful, yet the consequences thereof could not have been foreseen in its inception, and the damages therefrom to the plain- tiff's estate were not susceptible of readj- or immediate computation ; so that, in our judgment, the wrong was apportiouable, and might have been the ground of separate and distinct actions, the last of which should have something else, it was the plaintiff's privi- whereby he was greatly damaged. The lege to apply." plaintiff first complained in July, 1859, 1 Troy V. Cheshire H. R. Co., ante. A. and the defendants made some alterations; is the owner of a house, and B. is the owner he was again .damaged, and complained in of a mine under it, and, in working the December of the same year," and eventually mine, leaves insufficient support to the brought this action. On behalf of the de- house. The house is not damaged until fendants, it was contended that the action some time after the workings have ceased, was not brought in time, inasmuch as it Held, that A. could bring an action at was not brought within three months after any time within six years after the mis- the act complained of was committed, as chief happened, and was not bound to enacted by sec. 147 of the Turnpike Road bring it within six years after the work Act, 3 Geo. IV. u. 126. Held, that the was done which originally led to the mis- action was in time, as no cause of action chief. Backhouse v. Bonomi, 1 El. B. & S. arose to the plaintiff so long as the works 970. of the defendants caused him no damage. The defendants were the trustees of a and that the cause of action first accrued turnpike road, and the plaintiff alleged when the plaintiff received actual damage, that they so negligently made and main- Whitehouse v. Fellowes, 9 C. B. N. s. 901; tained certain catchpits for carrying off the Same v. Same, 10 id. 765. water from the road that large quantities ' Troy v. Cheshire R. E. Co., ante. of water ran into his land and collieries. 462 STATUTES OF LIMITATION. [CHAP. XV. dated from the period when the injury was finally- checked bj' the erec- tion of the wall, which the plaintiff was under no obligation to erect, but the expense of the erection of which was a proper element of damage.* The doctrine of the Iowa case is in conflict with the doctrine of a lead- ing English case.' In that case it appeared that in 1833 a manufactory was erected on a close ; and in 1841 and between that time and 1849 the buildings were enlai-ged. In March, 1842, the close and buildings, which were leased for a term which expired in October, 1851, were con- ve3-ed in fee by S., the owner, to C. C. died in 1849, and in November, 1851, the devisees under his will conveyed the close and buildings to the plaintiff in fee, who before 1849 was assignee of the term and occupied the buildings. In 1849 and 1850 the defendants, in getting coal from their mines, near but not immediately adjoining the close, caused the surface to subside, by which the buildings were injured. The de- visees of C. did not thereby, in fact, sustain any damage, inasmuch as thej- incuri-ed no expense, and continued to receive the full rent for the premises, and upon the sale thereof obtained the full value, without reference to any injury thereto (of which they were igno- rant) by the mining operations. Subsequently to the sale to the plaintiff, the working of the mines under lands near to but not ad- joining the close on which the buildings stood occasioned a further subsidence. No damage was done bj- the working of the mines subse- quently to Julj', 1852 ; but the subsidence of the ground continued, — the consequence of the previous mining operations. The mining was skil- fully conducted, and the buildings did not contribute to the subsidence. In August, 1855, the plaintiff brought an action against the defendant. Held, that he was entitled to recover damages in respect of the deteriora- tion in value of the manufactorj', the machinery broken, the increased expense of keeping it in repair and working order, and the diminished profits both in respect of his occupation before and after the purchase, and that the statute of limitations did not bar the plaintiflF's claim. We think tliat in the Iowa case the court failed to make a proper distinction between a wrongful act amounting to a nuisance which of itself creates a complete and permanent injury, and a nuisance, which is permanent, but the injury from which is not onlj'- continuous but also constantlj' increasing. In the former case, there can be no doubt but that the statute would run from the completion of the thing creating the nuisance ; 1 Phimer v. Harper, 8 N. H. 38. In was injured by the overflow of water from Polly V. McCall, 37 Ala. 20, an action was it. The court held that, as no action could brought for injuries resulting to the plain- accrue to the plaintiff until his lands were tiff's land from the diversion of the water injured from the maintenance of the ditch, of a brook by means of a ditch and levee, the defendant could acquire no title by which when first constructed did not injure presumption exoejit from thnt period, the plaintiffs land, except at times of great " Hamer v. Knowles, 6 H. & N. 464. floods. Subsequently, the ditch became See also Bonomi v. Backhouse, ante. filled with sand, and the plaintiff's land § 181-] TOETS QUASI E CONTEACTtT. 463 but in the latter case successive actions would lie until the nuisance is abated.* Sec. 181. Action must be brought before Prescriptive Right has been acquired. — While, as we have stated, each continuance of a nui- sance is treated as a new nuisance, and furnishes a new ground of action which aflfords a good ground of recovery, although the statute may have run upon former injuries from the same nuisance, yet this proposition only holds good when the action is brought before the per- son erecting or maintaining the nuisance has acquired a prescriptive right to do so, by the lapse of such a period as bars an entry upon lands adversely held by another,'' that being the period universally adopted in this country for the acquisition of prescriptive rights.^ It has been doubted, in at least one case,'* whether a prescripitive right could be acquired to maintain a nuisance that merely polluted the atmos- phere with offensive smells, or smoke and noxious or destructive vapors ; but, regardless of this ease, it may be said that according to the authori- 1 See Whitehonse v. Fellowes, 10 0. B. N. i3. 765, the gist of which is given ante, p. 461, note. Id Coh-ick v. Swinburne, 105 N. Y. 503, it was held that the diversion by the owner of land on which is a spring, of the water of the spring from its natural channel, whereby an owner below is deprived of the use of the water on his preniise.s, is a legal injury for which the party injured is en- titled to compensation in damages.Whether the use made by the owner of the spring is a reasonable exercise of his right, is a ques- tion of fact for a jury. Where the injury complained of was the diversion of the waters of a spring from the plaintiff's tannery, it was held that the diminished rental value during the period of diversion was the proper measure of damages. Where a complaint in such an action set forth the facts, it was heW, it was not material that the plaintiff did not demand tlie precise damages to which he was enti- tled, or that he mistook the true rale of damages ; that he was entitled to what- ever legal damages were recoverable for the wrong. Where a bill of particulars in such an action has been served, and evidence is received without objection, showing other damages than therein set forth, the objec- tion that plaintiff must be confined to a recovery of damages of the exact nature therein specified, may not thereafter be raised. It should be raised by objection to the testimony on the ground of variance from the bill of particulara. Such a diver- sion of water is a continuing injury, and is not referable exclusively to the day when the original wrong was committed, and although that was more than six yeara before the commencement of the action to recover damages, the action Ls not barred by the statute of limitations except to the damages which accrued prior to the six years, adding thereto, in case the action is by or against sm executor or administra- tor, the further extension allowed in such cases. Where the action is against an executor or administrator the three years' statute of limitations does not apply, as the action was not for taking, detaining, or injuring personal property. Where it is claimed by the defendant in such an action that the plaintiff's dam- ages have been enhanced by his own cnl- pable negligence or inaction, the burden of proving this is upon the defendant. 2 Wood on Nuisances, 717 et seg. • ' Marr v. Gilliam, 1 Cold. (Tenn.) 488 ; Sibley v. Ellis, 11 Gray (Mass.), 417. 4 Campbell v. Seamen, 2 T. & C. (N. Y. ) 240. See same case, 63 N. Y. 568, but this question was not passed upon. 464 STATUTES OF LIMITATION. [chap. XV. ties such a right can be acquired.^ The burden of establishing the right by user is upon him who asserts it ; and, applying the rules applicable to the acquisition of such rights, there are very few eases in which it can be clearly established.^ Sec. 182. What requisite to establish Prescriptive Right. — The fact that a noxious trade has been exercised for twenty years in a par- ticular locality does not by any means establish a prescriptive right to exercise it there. It is, however, evidence from which, in connection with other proof, the right may be established. But, in order to estab- lish the right as against any party complaining, the burden is imposed upon the defendant, who sets up the right as a defence, of proving that for the period of twenty years he has sent over the premises in question 1 Duncan v. Earl of Moray, 15 F. C. (Scotch) 302. In Dana v, Valentine, 5 Met. (Mass. ) 8, the defendant erected a slaughter- house in the suburhs of Cambridge, and maintained it there for the purpose of slaughtering cattle, boiling soap, and manu- facturing candles, from the j'ear 1825 down to the time when the plaintiifs brought their bill for an injunction, with a ceasor of only two years. The plaintiffs being the owners of vacant lots, and some of them of dwelling-houses within the sphere of its effects, brought a bill to restrain the defendant from carrying on his business there. The defendant set up a user of his premises for that purpose for twenty-four year.i, and claimed that he had acquired a right, as against the plaintiffs, to carry on his trade in that place. The court denied the injunction, upon the ground that it appeared that the defendant might have acquired a prescriptive right to exercise his trade there. The court say ; " The de- fence is, that the defendant, and those under whom he claims his title, have been in the possession of the buildings in which he carries on his trade for more than twenty years, during which time he and they carried on his trade without molestation or interruption, except for about two years, during which the buildings were not so used by them. This, prima facie, is a good foundation for the presumption of a grant, unless th? said non-user is to be con- sidered as breaking the continuity of the possession. The facts and circumstances in evidence are not sufficient to enable the court to give any decisive opinion on this point ; but, such as the cvidruce is, it is not sufficient to show any relinquishment or abandonment. Another objection to the defendants' title by presumption is, that until lately the plaintiffs suffered no damage from the alleged nuisance, and therefore could not interfere to prevent its continuance. But it is very clear that when a party's right of property is in- vaded he may maintain an action for an invasion of his right, without proof of actual damage." Grant v. Lyon, i Met. (Mass.) 477; Atkins v. Boardman, 2 id. 469 ; Bolivar Manufacturing Co. u. Nepon- set Manufacturing Co., 16 Pick. (Mass.) 247. In Charity v. Riddle, 14 F. C. (Scotch) 302, the defendants had erected or carried on in the suburbs of Glasgow for more than twenty years an establishment for the manufacture of glue, which emitted nauseous and offensive stenches. Upon a hearing upon a petition for an interciict to prevent the defendant from enlarging his works, the court held that, by an unmo- lested, uninterrupted exercise of his trade there for more than twenty years, the de- fendant had acquired a prescriptive right, as against the plaintiff, to continue it, but that he could not increase the nuisance by increasing the capacity of his works, and prohibited him from enlarging them. Col- ville V. Middleton, 19 F. C. (Scotch), 339 ; Miller :;. Marshal], 5 Mur. (Scotch) 32 •, Tipping V. St. Helen Smelting Co., IS. H. L. Cas. 643 ; Bliss v. Hall, 6 Scott, 500 ; Elliotson v. Feetham, 2 Bing. N. C, 134 ; Roberts v. Clark, 18 L. T. N. a. 48 ; Flight V. Thomas, 10 Ad. & El. 590. 2 Bradley's Fish Co. v. Dudley, 37 Conn.- 1S6. § 182.] TOKTS QUASI E CONTRACTU. ■iOo from his works an atmosphere equally' as polluted and offensive as that complained of.^ Proof that he has polluted the air is not enough : he must show that for the requisite period he has sent over the land an atmosphere so impure and polluted as to operate as an actual invasion of the rights of those owning the premises affected thereby, and in such a manner that the owner of the premises might have maintained an action therefor.^ Less than that is insufficient. He must also show 1 Flight V. Thomas, 10 Ad. & El. 590. 2 Roberts v. Clarke, 18 L. T. N. s. 48 ; Luther v. Winnissimmet Co., 9 Cush. (Mass.) 171. It is not enough to show that a noxious trade has been exercised in a particular locality for twenty years, and a plea setting up a prescriptive right in that way would be bad, and a ver- dict for the defendant upon such a plea would be set aside. In Flight v. Thomas, 10 Ad. & El. 590, the plaintiff brought an action against the defendant for sending offensive smeUs over his premises. The defendant replied by setting up that, for more than twenty years prior to the bring- ing of the plaintiff's action, he by himself and his predecessors had enjoyed and exer- cised the right, without molestation, of using n. certain mixen in and upon his premises, and that the smells and stenches complained of in the plaintiff's declaration arose from said mixen, necessarily and unavoidably ; but the plea did not allege that the smells had gone over the plain- tiff's land for twenty years. The jury found that the mixen was a nuisance, but that the plaintiff had used it for more than twenty years, and a verdict was thereupon entered for the defendant. Upon a rule to show cause why judgment should not be rendered for the plaintiff non obstante vere- dicto, LoED Denman, C. J., said : " There is no claim of an easement, unless you make it appear that the offensive smell has been used for twenty years to go over to the plaintiff's land. The plea may he completely proved without proving that the nuisance ever has passed beyond the limits of the defendant's own land." LlT- TLEDALE, J., Said : "The plea only shows that the defendant has enjoyed, as of right, and without interruption for twenty years, the benefit of something that occasioned a smell m his own land." The judgment ff-as reversed and judgment rendered for VOL. I. — 30 the plaintiff non obstante veredicto. The right being only to the extent of the use, and it being incumbent upon the defend- ant to establish the right by proving a use as extensive as that complained of, Ballard V. Dyson, 1 Taunt. 179 ; Eichardson v. Pond, 15 Gray (Mass. ), 389 ; Atwater v. Bodfish, 11 Gray (Mass.), 152 ; and in addition thereto, to prove that for the requisite period the noxious smells have passed over the plaintiff's premises, to such an extent as to be a nuisance,, and action- able as such. Flight v. Thomas, 10 Ad. & El. 590; and the presumption being that he who does an act upon his own prem- ises confines all its ill effects there, the difficulty of establishing a prescriptive right in such a case is obvious, Flight v. Thomas, anie ; and the burden assumed by the plaintiff in such eases is, of showing that during the whole prescriptive period the user has been unlawful, Monks v. Butler, 1 Roll. 83 ; Powell v. Millbank, 2 H. Bl. 851 ; Branch v. Doane, 17 Conn. 402 ; Casper v. Smith, 9 S. & R. (Penn.) 33 ; Cooper v. Barber, 3 Taunt. 99 ; Polly ■V. McCall, 87 Ala. 90 ; Murgatroyd v. Robinson, 7 El. & B. 391. The rale is, that " a prescription is entire and cannot be split " by either the party setting it up or the party opposing it. In Rogers v. Allen, 1 Camp. 308, the plaintiff brought an ac- tion of trespass against the defendant for breaking and entering a several fishery. The plaintiff alleged in his declaration a prescriptive right of fishing over four places in a navigable river. Upon trial, he failed to prove a right in but three ; and the court held that when an action is brought to recover for an injury to a prescriptive right , the prescription must be proved- as laid, and that if the right is only shown to exist in three of the places named in the decla- ration, the variance is fatal, and no recov- ery can be had even though it is also 460 STATUTES OF LTMITATIOK. [chap. XV. that his user at the time when the action is brought is not substantiallj- in excess of that which he has exercised during the period requisite to acquire the right.' The right is restricted to and measured by the use.^ For all excess of user an action lies. The enjoyment of a limited right cannot lawfully be enlarged, and any excess of use over that covered b}^ the actual user under which the right was gained will be actionable.' In order to establish a right by prescription, the acts by which it is sought to establish it must operate as an invasion of the particular right which it is sought to quiet, to such an extent that during the whole period of use the party whose estate is sought to be charged with the servitude could have maintained an action therefor. The rule is, that a prescription can only operate against one who is capable of making a grant. Therefore, if the estate was in the possession of a tenant for shown that the trespasses were committed in one of tlie three places over which the right existc-d. The party does not fail hecause he shows the right to be more am- ple than he lias laid it, Johnson v, Tlior- oughgood. Hob. 64 ; Bushwood v. Bond, Ci'o. Eliz. 722 ; but lie must prove it to exist to the full extent claimed, Rotheram V. Green, Noy, 67 ; Congers v. Jackson, Ckiy, 19 ; C'orbett's Case, 7 Coke, 5 ; Hick- n'an v. Thorny, Free, 211 ; Kingsmill v. Bull, 9 East, 1S5 ; Morewood v. Jones, i T. R. 157. The effect of this rule is this : where a pi'i'son sets up a prescriptive right to ilo an act with which he is charged in an action on the case, as for the pollution of the atmosphere over the plaintiff's prem- ises, by carrying on a particular trade, he is bound to set up a right to do all that he is cliargt'il with doing, in the declaration that forms the basis of an action far dam- ages. He cannot defend by setting up a prescriptive right to do less ; and if he sets up a pi-escriptive right to do all that he is charged with doing, his plea fails if he does not show a right as extensive as the one exercised by and charged against him in the declaration. Therefore he does not sustain his plea by proof of a right to pol- lute the air, unless he also shows that he had a right to pollute it to the extent and with the results charged and proved against him. This was held as early as the case of Rotheram v. Green, Noy, 67, and has not been materially varied since. The soundness of the doctrine is apparent, and is well sustained by authority. Tapling V. Jones, 11 H. L. Caa. 290 ; Weld v. Hornby, 7 East, 195 ; Bailey v. Apple- yard, 3 Nev. & P. 172 ; Wilcome v. Up- ton, 6 M. & W. 536. 1 "Weld V. Hornby, 7 East, 195 ; Top- ling V. Jones, 11 H. L. Cas. 266 ; Gold- smith V. Tunbridge Wells, &o. Improve- ment Co., L. R. 1 Eq. Cas. 352 ; Baxendale V. Murray, L. R. 2 Ch. App. 790 ; Ball v. Ray, 8 id. 467 ; Crossley & Sons v. Light- owler, L. R. 3 Eq. Caa. 279; Stein v. Burden, 24 Ala. 130. 2 Ballard v. Dyson, 1 Taunt. 277 ; Jackson v. Stacey, 1 Holt, 455 ; Cowlin; ; V. Higginson, 4 M. & W. 245 ; Peardon v. Underhill, 16 Q. B. 123 ; Davies v. Wil- liams, id. 547 ; Bower v. Hill, 2 Bing. N. C. 339 ; De Rutzen v. Lloyd, 6 Ad. & El. 456 ; Allan v. Somme, 11 id* 759 ; Higham v. Rabett, 5 Bing. N. C. 622 ; Helming v. Barnett, 8 Exch. 187 ; Brooks V. Curtis, 4 Lans. (N. Y. S. 0.) 288; Wright V. Moore, 39 Ala. 593 ; Atwater v. Bodfish, 11 Gray (Mass.), 152 ; Rexford v. Marquis, 7 Lans. (N. Y. S. C.) 257 ; Simp- son V. Coe, 4 N. H. 301 ; Horner v. Stil- well, 35 N. J. 307 ; Noyes v. Morrill, 108 Mass. 396 ; Stiles v. Hooker, 7 Cow. (N. Y.) 266; Burrell v. Scott, 9 id. 279; Dyer v. Dupey, 5 Whart. (Penn.) 584 ; Rogers v. Allen, 1 Camp. 813 ; Martin v. Gable, id. 320 ; Bealey v. Shaw, 6 East, 208. ^ Chandler v. Thompson, 3 Camp. 80 ; Weld V. Hornby, 7 East, 195 ; Tapling V. Jones, 11 H. L. Cas. 290 ; Staight v. Burn, L. R. 5 Ch. App. 163. § 182.] TOKTS QUASI E COXTEACTU. -LGl life,^ or for a term,^ or if the owner of the fee was a minor,' a married woman,^ or an insane person,^ no right can be acquired during the term, or while the disability exists. In order to acquire the right, the person owning the estate affected thereby must be in a condition to resist it. But where the adverse use has begun before the owner of the servient estate lets it, the letting of the estate does not prevent the acquisition of the right. He having been in a position to resist the advei-se use, cannot, bj- voluntarily putting himself in a position where he cannot resist it, prevent the perfection of the right while the estate is in the possession of the tenant.^ Neither does the fact that the premises are in the possession of a tenant prevent the perfection of the right, if the injurj' is of such a character, and is known to the land- lord, that he could maintain an action for an injuiy to the reversion." It is only as against such rights as operate an injurj- to tlie reversion, so that an action can be maintained by the reversioner therefor, that a prescriptive right can be acquired while the premises are in the posses- sion of a tenant ; and then, in order to acquire the right, the user must be open, and of such a character that the reversioner ma3' fairly be pre- sumed to have knowledge of it. or actual knowledge must be shown. Indeed, the user must be such that it can fairly be said to be witli the acquiescence of the reversioner, aud an acquiescence by the tenant does not bind him.' The user must also be shown to have been peaceable and uninterrupted, so that it can be said to have been acquiesced in by the owner of the estate affected bj- it.° The prescription begins to run from the time when a legal right is actually invaded bj" the nuisances, so that the law will imply damage therefrom, and must continue for the period requisite under the statute for acquiring a title to land by adverse enjoyment." 1 McGregor v. Waite, 10 Gray (Mass.), ' Wallace v. Fletcher, 10 Foster (X. 75 ; Barker v. Richardson, 4 B. & Aid. H.), 153 ; Shadwell v. Hutchinson, i C. & 579 ; Wood r. Teal, 5 B. & S. 454 ; Har- P. 333; Tucker v. Xewiuau, 11 Ad. & El. per V. Charlesworth, 4 B. & C. 574. 40. 2 Wood V. Veal, ante. In Bright v. * Bradbury r. Grinsel, 2 Wm. Saun- Walker, 1 C. II. & R. 211, it was held ders, 175, n. that the user must be such as to give a ' Bealey v. Shaw, ante ; .^tiUman v. right against all persons having estates in Wliite Rock Co., 3 W. & if. (U. S. C. C. ) the lands affected thereby. See Winship 549; Xichcils o. Aylor, 7 Leigh (Va.), V. Hudspeth, 10 Exch. 8, Aldeksox, B. 546; Smith v. Miller, 11 Gray (JIass.), 3 Watkins v. Peck, 13 >'. H. 360; 14S ; Tracey v. Atherton, 36 Vt. 514; Mebane v. Patrick, 1 Jones (N. C.), 26. Powell .-•. Bragg, 8 Gray (Mass.), 441 ; * McGregor i: Waite, ante. Bailey v. Appleyard, 3 N. & p. 157. ■■' Edson V. MunseU, 10 Allen (Mass.), " Pollard v. Barnes, 2 Ciish. (JIass.) 557 191 ; Parks v. Mitchell, 11 Exch. TSS. 6 Mebane v. Patrick, ante ; Cross v. But as to what is such a continuous user Lewis, 2 B. & C. 686 ; Fracey v. Atherton, as wiU perfect the right, is a question to be 36 Vt. 503 • Wallace v. Fletcher, 10 Fos- determined from the circumstances of each ter (N. H.), 434 ; Tyler v. WUkinson, 4 particular case, and is to be determined Mason (U. S.) 402. ^'^t'l reference to the nature and character 468 STATUTES OF LIMITATION. [CHAP. XV. Sec. 188. Trover. — The statute begins to run in an action of trover from the time of conversion.' Thus, in the Pennsylvania case cited in of the right claimed It is not to he under- stood that the right must be exercised continuously, in the strict sense of the word, without cessation or interruption, but that it is to he exercised as continu- ously and uninterruptedly as the nature of the right claimed requires, in order to satisfy a jury that the right claimed is corarasnsurate with the user. Thus, in order to acquire a right of way across another's laud, it is not essential that the person asserting the right should have passed over the way every day in the year, or even every month in the year. It is sufficient if he has used the way as his con- venience and necessity required, and that his user he such as to leave no room to doubt his intention to maintain his use of the way as of right. Pollard v. Barnes, 2 Gush. (Mass.) 191 ; Bodfish v. Bod- fi,sh, 105 Mass. 317 ; Lowe v. Carpenter, 6 Exch. 630, Parke, B. ; Paries v. Mitchell, 11 Exch. 788 ; Hogg «. Gill, 1 McMullen (S. C), 359; Nash v. Peders, 1 Speers (S. C), 17. But he must not suffer unreasonable periods to elapse be- tween his acts of user. Thus it has been held, that where a party claiming a right of way over another's land to get the hay from an adjoining lot once each year, the exercise of this right once a year, as of right, will sustain a prescriptive right for such a use. Can- v. Foster, 3 Q. B. 581. But such a user would not confer a right of way for any purpose and at any time that the pai'ty might see iit to exercise it. The continuity must not be broken, and whether or not it has been depends upon the nature of the easement claimed, and non-user in reference thereto. In Coke's Litt. 1136, the doctrine as borrowed from Bracton is laid down as, follows: "The possession must be long, continuous, and peaceable. Long, that is, during the time required by law ; continuous, that is, uninterrupted by any lawful impediment ; and peaceable, be- cause if it be contentious, and the opposi- tion be on good grounds, the party will be in the same condition as at the beginning of his enjoyment. There must be long use, without force, without secrecy, as of right, and without interruption." Here all the requisite elements to acquire a prescriptive right are concisely stated ; and whether or not they exist in a given case is a question of fact to be determined by the jury, in view of the right claimed, the manner iu which it has been used, and the purpose of its nse. The burden of establishing the existence of all these elements, and consequently of establishing the right, is always upon him who asserts it. Pollard V. Barnes, 2 Gush. (Mass.) 191 ; "Watt v. Trapp, 2 Rich. (S. C.) 186; Geranger v. Summers, 2 Ired. (N. G.) 229 ; Winnepi- sogee Co. v. Young, 40 N. H. 436. 1 Horseaeldu. Cast, Add. (Penn.) 162; Outhouse V. Outhouse, 13 Hun (N. Y.), 130; Montague -n. Sandwich, 7 Mod. 99; Fishwick v. Sewall, 4 H. & J. (Md.) 393. In this view it becomes important to ascer- tain what amounts to a conversion ; and it may be said that any illegal act of domin- ion over the property of another which amounts to the assertion of a title therein, and in defiance of the real owner's title, is a conversion, Becldey v. Howard, 2 Brev. (S. C.) 94; Webber v. Davis, 44 Me. 147; whether the person knew of the plaintifTs title thereto or not, Harris v. Saunders, 2 Strobh. (S. G.) 370 ; and even though a person does not claim title in the goods, yet if he exercises dominion over them, as if he threatens to sue the owner if he en- ters upon his premises to take them away, he is chargeable with their convefteion, Hare v. Peai'son, 4 Ired. (N. C.) 76. Where the original taking is wrongful, a right of action accrues immediately with- out a demand, and of course the statute begins to run from that time, Farrington V. Payne, 15 Johns. (N. Y.) 431; Wood- bury V. Long, 8 Pick. (Mass.) 643; Davis V. Webb, 1 MoCord (S. C), 213 ; nor is a demand necessary where there has been an actual conversion, Darrell v. Mosher, 8 Johns. (N. Y.) 445; Tompkins v. Hale, 3 Wend. (N. Y.) 406 ; Hines v. McKin- ney, 3 Mo. 382 ; Jewett v. Partridge, 12 Me. 243. But when goods are rightfully obtained, and there has been no actual conversion, a demand is necessary before an action can bfe brought, and in such a case the statute begins to run from the .§ 183.] TORTS QUASI E CONTEAGTU. 469 the last note, an action of trover was brought for a United States certi- ficate levied upon and sold on an execution, and it was held that the statute began to run from the date of sale. But, if there had been a demand upon the officer for the certificate before the sale, the statute would have run from the time of demand and refusal, because a refusal to dehver up property which the defendant has no right to keep on demand amounts to a conversion of itself.^ Where an actual conver- sion is shown to have been made, although not known to the owner, the statute runs from the date of the conversion, unless the defendant has fraudulenth- concealed the fact, or been gnUtj of fraud to prevent the owner from obtaining knowledge of it within the statutory period.* So time of demand, itontagne v. Sandwich, ante; Thorogood v. Robinson, 6 Q. B. 7i2; Baldwin v. Cole, 6 ilod. 212. 1 Eeade r. Slarkle, 3 Johns. (N^. Y.) 523; Uontagae v. Smith, aiUe. In Comp- ton V. Chandless, i Esp. 20, Lobs Kes- Tos said, as to the plea of the statute of limitations, that the inclination of his mind was that the plea was insufficient. That in the case of an action for trover, if the goods are left with another the statute of limitations does not begin to run from the time of delivery, but from the time of demand and refusal. According to Lord Holt, the very assuming to one's self the property and right of disposing of another man's goods is a conversion of them. "And certainly," observes Lokd Ellexbokoitgh, *' a man is guilty of a conversion who takes my property by assignment &om another, who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect ? " M'Combie v. Davies, 6 Easl^ 540. And if such person acts as agent for another who subsequently, although without knowl- edge that the sale was illegal, adopts it, the latter will also he liable. Hilbery r. Hatton, 33 Law J. Exch. 190; Fowler V. HoUins, I-. K. 7 Q. B. 616. "When the chattels of the plaintiff have not been wrongfully taken possession of by the defendant, but have come into his hands in » lawful manner, he cannot be made responsible for a conversion of them unta they have been demanded of him by the owner or the person entitled to the possession of them, and he has refused to deliver them up. Vhenever, therefore, the goods of one man have lawfully come into the hands of another, the owner, or person entitled to the possession of them, should go himself, or send some one with a proper authority to demand and receive them; and if the holder of the goods then refuses to deliver them up, or permit them to be removed, there will be evidence of a conversion. Thorogood v. Eobinson, 6 Q. B. 772; for "whoever," observes Holt, C. J., "takes upon himself to detain an- other man's goods from him without cause, takes upon himself the right of disposing of them," and is guilty of a conversion. Baldwin v. Cole, 6 Mod. 212. The de- mand and refiisal do not in themselves constitute the conversion. They are evi- dence of a conversion at some previous period. Wilton v. Girdlastone, 5 B. & Aid. 847. 2 Granger c. Geoi^e, 5 B. & C. 149 ; Johnson v. White, 21 Miss. 5S4 ; Smith V. jS'ewby, 13 id. 159; Short r. McCarthy, 3 B. & "C. 626 ; Mc Wills o. Browne, 15 Mass. S2; Ward v. Dulaney, 23 Miss. 410; Clark f. Marriott, 9 Gill (Md.), 331; Brown v. Howard, 2 B. & B. 73; Jordan V. Thornton, 7 Ga. 517; Deuch v. Walker, 14 Mass. 499 ; Harris v. Saunders, 2 Strobh. (S. C.) 370; Ashmead «. Kellogg, 23 Conn. 70. That a fraudulent conceal- ment of the fact of conversion will defeat the operation of the statute, except from the time when the facts were or ought to have been discovered, has been held in South Carolina and Mississippi, and doubt- less would be held in all the States where fraud is regarded as sufficient to suspend the operation of the statute in any case. Fears V. Sykes, 35 Miss. 633; Clarke v. Eeeder, 1 Speers (S. C), 398; Simons v. Fox, 12 Wch. (S. C.) L. 892. 470 STATUTES OP LIMITATION. [CHAP. XV. where the original taking is unlawful, as no demand is necessarj', or proof of actual conversion, a right of action accrues from the time of the taking.^ The question as to how far the title to personal property is affected by its retention by a person until the statute has barred an action for its recovery is one of considerable importance ; and it may be said that, within the jurisdiction where the statute has run upon the claim, there seems to be no question but that the effect of the statute is to transfer the legal title to the person in possession, so that he may maintain an action even against the former owner for any interference therewith.^ Thus, where a tenant erects buildings upon leased premises and permits them to remain there for more than six years after his time has expired, the statute of limitations bars all claim for their re- covery by him, and transfers the title thereto to the owner of the land.' But, in order to defeat the title of the true owner to the property, the possession must be adverse, the same rule obtaining in this respect as obtains relative to lands ; * but the possession must be continuous in the person seeking to avail himself thereof, and he cannot tack it to the possession of aiiother, and thus acquire title under the statute. ° If the propertj' is held as bailee under a contract, or in recognition of the owner's title, the statute does not run against the owner until the per- son so holding it has done some decisive act evincing a determination to deny the owner's title. Thus, where bonds were pledged to a per- son as security for a loan, and held by him for several yenrs, it was held that the statute did not begin to run against the owner until he had repaid the loan and demanded the bonds ; and then, upon the re- fusal or neglect of the pledgee to return them, the statute began to run, and not before. ° In such a case, the owner has his choice of remedies, either in trover for the conversion, or in assumpsit for the value, of the property, upon the implied contract to return the property on payment of the loan; consequently, although an action of trover may be barred, a remedy may still remain upon the implied contract.' Sec. 184. Trespass, Assault, &c. — In an action for seizing personal property under an execution against a stranger, the statute begins to run from the date of seizure, and the fact that a claim to the property is interposed and litigated in the same case will not suspend the opera- 1 Davis i>. Welob, 1 McCord (S. C), « Preston ii. Briggs, -16 Vt. 124. 213 ; Woodbury v. Long, 8 Pick. (Mass.) * Baker v. Chase, 55 K". H. 61. S43. 6 Beadle v. Hunter, 3 Strobh. (S. C.) " Mercein v. Burton, 17 Tex. 206 ; 31 ; Hobbs v. Bullard, 5 Sneed (Tenn.), Winburn v. Cochran, 9 id. 123, also 143; 395 ; Moffatt v. Buchanan, 11 Humph. Cookfield ■!;. Hudson, 1 Brev. (S. C.) 311; (Tenn.) 361 ; "Wells v. Eagland, 1 Swan McArthur v. Carver, 32 Ala. 75 ; Howell (Tenn.), 501. V. Hair, 15 id. 194; Bohanan v. Chapman, " Roberts v. Berdell, 61 Barb. (S. Y.) 17 id. 696; Ewell v. Tedwell, 20 Ark. 136; 37; Jones v. Jones, 18 Ala. 248. Vandever v. Vandever, 8 Met. (Ky.) 137; ' Kirkman v. Phillips, 7 Heisk. (Tenn.) Clarke v. Slaughter, 34 Miss. 65; Devine 222. V. Bullock, 3 Met. (Ky.) 418. § 187.] TORTS QUASI E COXTRACTU. 471 tion of the statute ; ' and in all cases of trespass, either to the person or property, the statute runs from the time it was* committed,^ and not from the time when the fuU extent of the injury was ascertained. This is also the rule as to trespass quare clausum fregit for mesne profits.* In equity as well as at law, in the absence of any special circumstances to the contrarj', a trespasser in possession of the estate of another must account for the mesne profits for the whole time he has been in possession, so far as the account is not barred by any express statute. But such circumstances are readily assumed ; and where the defendants have been in justifiable ignorance of plaintiff's title, the account will usually be taken only from the date of the filing of the bUl.^ In an adverse suit in the nature of an ejectment biU, the account is directed only from the fihng of the biU ; but in a suit against a person in a fidueiarj' character the account is taken either from the original period, or if the court thinks so fit, on account of the plaintiflf's laches, for the six years only previous to the filing of the bill.^ But this is so only in cases where there is, to quote the words of Turner, L. J., "No fraud, no suppression, no infamy."^ Sec. 185. Criminal Conversation. — An action for crim. con. is treated as an action on the case rather than in the nature of trespass, as the injury is consequential rather than direct, and consequently the life of the remedy depends upon the statutory period provided for actions on the case.' Of course the statute begins to run from the time when the offence was committed.^ Sec. 186. Seduction. — In an action for seduction, the statute begins to run from the date of the seduction ; but in an action by a parent for the loss of service resulting' from such seduction, the statute does not begin to run until the birth of the child and the mother's recovery therefrom,' or in other words, until the loss of service has accrued. Sec. 187. Failure to •perform Duty imposed by Statute. — Where the statute imposes a duty, and specifies a time within which it shaU be performed, and gives to certain parties a remedy if it is not performed, the statute begins to run immediately upon the failure to perform within the time specified. Thus, where the statute requires the officers of a corporation to file an annual report in a certain office, on or before 1 Baker'!). Boozer, 58 Ga. 195. = Per Wood, V. C, in Thomas v. 2 Kerns v. Sehoomaker, 4 Ohio, 331. Thomas, 2 K. & J. 79. 3 HiU V. Myers, 46 Penn. St. 15 ; « Hicks v. Sallitt, 3 De G. M. & G. Lvnch i;. Cox, 28 id. 265. 782. „, „ ,. * Dormer v Fortescue, 3 Atk. 124 ; ' Cook v. Sayer, 2 Wils. 85; Sanborn Pettiward ■». Prescott, 7 Ves. 541; Bowes v. Neilson, 5 N. H. 314; Macfadden v. V East London Waterworks, 3 Madd. Olivant, 6 East, 388. 375-383 ■ Attorney-General v. Corporation ' Tidd's Practice, 5. of Exeter, 2 Russ. 45 ; Clarke ./. Yonge, « WUhoit v. Hancock, 5 Bush (Ky.), 5 Beav. 523. 567. 472 STATUTES OF LIMITATION. [CHAP. XV. a certain day, and provides certain remedies upon a failure to make such report, the statute begins to run immediately upon a failure to perform by the day named.^ In all such cases, the decisive question is. When did the plaintiff's right of action first accrue? and from that date the statute runs. 1 Duckworth v. Roach, 8 Daly (IST. Y. C. P.), 159.