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LIMITATIONS.

§ 430. What limits rights of entry. The statute of limitations is set up in bar either of rights of entry, or of rights of action. (a) In the former case, when the defendant claims title to land under a long possession, he must show that the possession was open and visible, notorious, exclusive, and adverse to the title of the plaintiff. It must be such that the owner may be presumed to know that there is a possession adverse to his title;2 but his

1 Taylor v. Horde, 1 Burr. 60 ; Cowp. 689 ; Jerritt v. Weare, 3 Price, 575 ; 4 Kent, Comm. 482-489; Kennebec Propr's v. Springer, 4 Mass. 416 ; Kennebec Propr’s v. Laboree, 2 Greenl. 273 ; Little v. Libby, Id. 242; Little v. Megquier, Id. 176; Norcross 0. Widgery, 2 Mass. 506.

2 Kennebec Propr's r. Springer, 4 Mass. 416 ; Coburn v. Hollis, 3 Met. 125 ; Bates v. Norcruss, 14 Pick. 224 ; Prescott v. Nevers, 4 Mason, 326.

(a) The general principle expressed in 2. Or as an absolute principle of the the maxim nullum tempus occurrit regi, substantive law which extinguishes all prevents the statute of limitations from debts, &c., after the lapse of a certain time. applying to suits by the sovereign power in If the statute of limitations extinguishes the exercise of its sovereign rights. There- the right of action, as has been held in fore the United States cannot be bound by some States, then the lex loci contractus such statutes, nor the various sovereign will govern. Hardy v. Harbin, 4 Sawyer, States of the Union, and in some States C. Ct. 536; McMerty v. Morrison, 62 Mo. this privilege is extended to municipal 140. corporations. U. S. v. Thompson, 98 U. A question has arisen whether a new S. 486 ; Wheeling v. Campbell, 12 W. Va. statute of limitations is not unconstitu36; Zadiere’s Succession, 30 La. An. Pt. tional as impairing vested interests: for inii. 1260.

stance, if it shortens the time within which The statute of limitations may be con- action may be brought for breach of considered as one of two things : 1. As only tract. It is generally held that if the new a rule of procedure established to prevent statute allows a reasonable time for bringsuit on a cause action after a certain ing actions under the old statute which time has elapsed, leaving the cause of ac- would be barred under the new one (and tion still existing, though it has been de- such time will be allowed by implication, prived of its remedy. Meek v. Meek, 45 if not expressly denied), and if it does not Iowa, 294. It may be said that there is destroy any defence which had become then no legal cause of action, since the law complete under the old statute, it is constiknows no wrong without a remedy, but tutional and valid. Terry v. Anderson, 95 the distinction becomes important when U. S. 628 ; People v. Wayne Circuit Judge, suit is brought on a cause of action which 37 Mich. 287 ; Krone v. Krone, Id. 308. has accrued in another State. The ques- The legal statute of limitations is not tion then arises, whether the claim is to be considered as of binding force on a court governed by the statute of the State where of equity in the same way as on a court of the debt was incurred, or where it is sued. law, but it is generally followed, ir analoIf the statute of limitations is a rule of gous cases. Often, however, a court of procedure, the lex fori, i. e. the statute equity will treat a claim as barred by neg. of the State where the suit is brought, will ligence in the complainant, when the statgovern. Miller v. Brenham, 68 N. Y. 83; ute of limitations would not bar a legal McArthur v. Goddin, 12 Bush (Ky.), 274 ; claim of the same nature. Castner v. McMerty v. Morrison, 62 Mo. 140; Meek Walrod, 83 11. 171; Neely's Appeal, 85 v. Meek, sup.

Pa. St. 387.

actual knowledge is not necessary, it being sufficient if, by ordinary observation, he might have known. It must be knowingly and designedly taken and held; an occupancy by accident and mistake, such as through ignorance of the dividing line, or the like, is not sufficient.2 And it must be with exclusive claim of title in the possessor, and not in submission to the title of the true owner.3

§ 431. Burden of proof. Where the statute of limitations is set up in bar of a right of action, by the plea of actio non accrevit infra sex annos, which is traversed, the burden of proof is on the plaintiff, to show both a cause of action, and the suing out of process within the period mentioned in the statute.* (a) By suing out of process in these cases, is meant any resort to legal means for obtaining payment of the debt from the defendant; such as filing the claim in set-off, in a former action between the same parties, which was discontinued ;5 or filing it with the commissioners on an insolvent estate. And the suit is commenced by the first or incipient step taken in the course of legal proceedings, such as the actual filling up and completing the writ, or original summons, without showing it served ;7 the true time of doing which may

1 Poignard v. Smith, 6 Pick. 172.

2 Brown v. Gay, 3 Greenl. 126 ; Gates v. Butler, 3 Humph. 447 ; Ross v. Gould, 5 Greenl. 204.

8 Small v. Proctor, 15 Mass. 495 ; Little v. Libby, 2 Greenl. 242 ; Peters v. Foss, 5 Greenl. 182 ; Teller v. Burtis, 6 Johns. 197.

4 Hurst v. Parker, 1 B. & Ald. 92 ; 8. c. 2 Chitty, 249 ; Wilby v. Henman, 7 Tyrw. 957; 2 Cr. & Mees. 658. 5 Hunt v. Spaulding, 18 Pick. 521.

6 Guild v. Hale, 15 Mass. 455. 7 Gardiner v. Webber, 17 Pick. 407; Williams v. Roberts, 1 Cr. M. & R. 676; 5 Tyrw. 421 ; Burdick v. Green, 18 Johns. 14; Beekman v. Satterlee, 5 Cowen, 519; Johnson v. Farwell, 7 Greenl. 370 ; Parker v. Colcord, 2 N. H. 36 ; Thompson v. Bell, 6 Monroe, 560. But see Bonnet v. Ramsey, 3 Martin, 776; Jencks v. Phelps, 4 Conn. 149; Perkins v. Perkins, 7 Conn. 558 ; Day v. Lamb, 7 Vt. 426.

(a) The modes of taking advantage of the allegations of the complaint as admisthe statute of limitations, in the pleadings, sions of the plaintiff, and the burden of have been variously considered. It is held evidence will then be shifted to the plainby the Court of Claims, that if the state- tiff, to show some exception. Harper v. ments of the complaint show on the record Terry, 70 Ind. 264; Hutchinson v. Hutchthat the statute of limitations has barred inson, 34 Ark. 164; Dezengremel v. Dezthe claim, a motion to dismiss will be engremel, 24 Hun (N. Y.), 457; Hines granted. Campbell v. United States, 13 v. Potts, 56 Miss. 346; Field v. Columbat, Ct. of Cl. 108.

4 Sawyer C. Ct. 523; People v. Herr, 81 It is held in some States that, on such Ill. 125; Green v. N. Carolina Ry, Co., 73 a record, the defendant should demur to N. C. 524. the complaint. Lewis v. Alexander, 51 If the complaint or declaration shows Tex. 578; Collins v. Mack, 31 Ark. 684. on its face matter which avoids the

Probably, however, the better rule is to statute of limitations, and the defendant regard the statute as a defence which must traverses these allegations, the burden of be set up by plea, and that the burden of proving these allegations is on the plain. proof is on the defendant to establish this tiff. Čapen v. Woodrow, 51 Vt. 106. plea. This he may of course do by using

be shown by extrinsic evidence, irrespective of the date of the process, though the date of the process is prima facie evidence of the time when it was sued out. So, the true time of filing the declaration may be shown, without regard to the term of which it is intituled. The issuing of a latitat is the true commencement of a suit by bill of Middlesex ;4 and so is the issuing of a capias in the common pleas. The filing of a bill in chancery is also a good commencement of an action, unless the bill is dismissed on the ground that the subject is cognizable only at law.. (a)

§ 432. New suit after failure of former. If writ is abated by the death of the plaintiff, or by her marriage, if a feme sole, the operation of the statute is prevented by the commencement of a new suit, by the proper parties, within a reasonable time; and this, where it is not otherwise regulated by statute, is ordinarily understood to be one year, this period having been adopted from the analogy of

1 Bilton v. Long, 2 Keb. 198, per Kelyng, C. J.; Johnson v. Smith, 2 Burr. 950, 959; Young v. Kenyon, 2 Day, 252.

2 Bunker v. Shed, 8 Met. 150.

8 Granger v. George, 5 B. & C. 149 ; Snell v. Phillips, Peake's Cas. 209 ; Robinson v. Burleigh, 5 N. H. 225.

4 Johnson v. Smith, 2 Burr. 950.

• Leader v. Moxon, 2 W. Bl. 925. Where the writ and declaration disagree, as where the writ is in trespass, and the declaration is in assumpsit, as is practised in the courts of king's bench and common pleas, it must be shown not only that the writ was seasonably issued, but that it was entered and continued down to the time of filing the declaration; for otherwise it will not appear that the writ was sued out for the present cause of action. But in the United States this is seldom necessary; and where the course of proceeding would seem to require it, the continuances are mere matters of form, and may be entered at any time. See Angell on Limitations, c. 28; Schlosser v. Lesher, 1 Dall. 311 ; Beekman v. Satterlee, 5 Cowen, 519 ; Soulden v. Van Rensselaer, 3 Wend. 472 ; Davis v. West, 5 Wend. 63.

6 Gray v. Berryman, 4 Munf. 181. See, further, Angell on Limitations, c. 28.

(a) After legal proceedings have once Co., 53 Cal. 102 ; Illinois, &c. Ry. Co. v. been instituted to enforce a claim, the fact Phelps, 4 Ill. App. 238. An amendment that they have been discontinued because bringing in a new defendant on a joint conthe form of action is incorrect, or for other tract is not a new cause of action, but on matters of form, does not render a subse- a joint and several contract it is, and he quent proceeding, if it is instituted with may plead the statute. Woodward v. Ware, due despatch, barted by the statute of limi- 37 Me. 563. tations accruing since the beginning of the Filing a claim in set-off is beginning to former proceedings. Marsh v. Supervisors sue on the claim so as to avoid the statute. of St. Croix County, 42 Wis. 355. Nor Hunt v. Spaulding, 18 Pick. 521. will any lapse of time in the course of legal If the defendant dies after suit brought, proceedings, if they are based on the origi. and, after the expiration of the time limnal writ filed before the statute, bar the ited for suing the administrator, his adclaim. Hemphill v. McClimans, 24 Pa. ministrator is summoned in, he cannot St. 367; Woods v. Houghton, 1 Gray plead the statute, as his coming in to de(Mass.), 580. Nor will the introduction fend is not the commencement of suit. of amendments, provided a new cause of Bank of Brighton v. Russell, 13 Allen action is not thereby made a part of the (Mass.), 221. claim. Atkinson v. Amador, &c. Canal

28

VOL. II.

Tort.

the fourth section in the statute of limitations of James I., providing for the cases of judgments reversed or arrested.' (a) But this rule does not apply to an action determined by voluntary abandonment by the plaintiff, as in case of a nonsuit.? (6)

433. When statute begins to run. In cases of tort, and in actions on the case sounding in tort, a distinction is to be observed between acts wrongful in themselves, which directly affect the rights of the plaintiff, and for which, therefore, an. action may be instantly maintained without proof of actual damages, and those cases where the injury is consequential, and the right of action is founded on the special damages suffered by the plaintiff. In the former class of cases, the statute period begins to run from the time when the act is done, without regard to any actual damages or to any knowledge by the party injured. But, in the latter cases, it runs from the time when the special damage accrued. (c) Thus, in slander, where the words impute an indictable offence, the time runs from the speaking of them; but if they are actionable only in respect of the special damage, as in slander of title, it runs from the time when this damage was sustained. So in trover, the time is computed from the act of conversion of the goods. And in actions for official or professional negligence, the cause of action is founded on the breach of duty which actually injured the plaintiff, and not on the consequential damage. Thus, in an action against an attorney for neglect of

1 Kinsey v. Heyward, 1 Ld. Raym. 434, per Treby, C. J.; Forbes v. Lord Middleton, Willes, 259, n. c; Matthews v. Phillips, 2 Salk. 424, 425 ; Angell on Limitations, c. 28; Huntington v. Brinkerhoff, 10 Wend. 278.

? Richards v. Maryland Ins. Co., 8 Cranch, 84, 93 ; Harris v. Dennis, 1 S. & R. 236. But see Cretien v. Theard, 2 Martin, 747. 8 Law v. Harwood, Cro. Car. 140; Saunders v. Edwards, 1 sid. 95.

Crompton v. Chandless, 4 Esp. 20, per Ld. Kenyon ; Granger v. George, 5 B. & C. 149; Denys v. Shuckburg, 4 Y. & C. 22.

(a) This provision is generally adopted process brought in a county in which neiin all the statutes of limitations in the ther of the trustees resides, is an abateUnited States, and is held by analogy to ment or dismissal " for a matter of form " extend to like cases. McOmber v. Chap- within the meaning of the statute. Woods man, 42 Mich. 117; Coffin v. Cottle, 16 v. Houghton, 1 Gray (Mass.), 580. Pick. (Mass.) 386 ; Woods v. Houghton, 1 (6) See also Swan v. Littlefield, 6 Cush. Gray (Mass.), 580; Downing v. Lindsay, (Mass.) 417; Bullock v. Dean, 12 Met. 2 Pa. St. 385 ; Baker v. Baker, 13 B. (Mass.) 15. The period of limitation is Mon. (Ky.) 406; Givens v. Robbins, 11 not prolonged where the writ is abated by Ala. 168. And where the statute provides being brought in the wrong county. Donfor the commencement of a new action nell v. Gatchell, 38 Me. 217. within one year, “if the writ shall be (c) Bank of Hartford County v. Wa. abated or the action otherwise defeated for terman, 26 Conn. 324, Betts v. Norris, 22 any matter of form,” the abatement or dis. Me. 314 ; Lesem v. Neal, 53 Mo. 412. missal for want of jurisdiction of a trustee

professional duty, it has been held that the statute of limitations begins to run from the time when the breach of duty was committed, and not from the time when the consequential damage accrued. (a) So, in an action against the sheriff for an insufficient return upon a writ, by reason whereof the judgment was reversed, the statute begins to run from the time of the return, and not from the reversal of the judgment. But in an action for taking insufficient bail, the injury did not arise to the plaintiff until he had recovered judgment, and the principal had avoided, for until then the bail might have surrendered the principal; and therefore the statute begins to run from the return of non est inventus on the execution.3

§ 434. Same subject. Act done. The same distinction has been recognized, in expounding private and local statutes, which have limited the remedy to a certain period of time from the act done. Where the act was in itself lawful, so far as the rights of the plaintiff were concerned, but occasioned a subsequent and consequential damage to him, the time has been computed from the commencement of the damage, this being the act done, within the meaning of the law. But where the original act was in itself a

1 Howell v. Young, 2 C. & P. 238; 8. c. 5 B. & C. 259, confirmed in Smith v. Fox, 12 Jur. 130; Brown v. Howard, 4 J. B. Moore, 508; s. C. 2 B. & B. 73; Short v. McCarthy, 3 B. & Ald. 626. See also Leonard v. Pitney, 5 Wend. 30; Bank of Utica v. Childs, 5 Cowen, 238; Stafford v. Richardson, 15 Wend. 302; Argall v. Bryant, 1 Sandf, 98.

2 Miller v. Adams, 16 Mass. 456.
8 Rice v. Hosmer, 12 Mass. 127, 130; Mather v. Green, 17 Mass. 60.

4 Whether a mere nonfeasance and omission can be regarded as an act done, so as to be within the protection of these statutes, has been much doubted. See Blakemore v. Glamorganshire Canal Co., 3 Y. & J. 60; Gaby v. Wilts. & Berks. Canal Co., 3 M. & S. 580; Umphelby v. McLean, 1 B. & Ald. 42; Smith v. Shaw, 10 B. & c. 277, per Bayley, J.

(a) White v. Reagan, 32 Ark. 281; Moore longer time than that limited by statute does v.. Juvenal, 92 Pa. St. 484.

The same

not extend the time for bringing the action. principle applies where one, having sold He should sue, and recover anticipatory land and received the purchase-money, damages based on the probable duration of conveys to some third party. The wrong his injuries. Fowlkes v. N. & D. Ry. Co., done is the conveying, and the action of the 5 Baxt. Tenn. 663; Piller v. Southern Paoriginal purchaser is only barred after the citic Ry. Co., 52 Cal. 42. statutory period has elapsed, beginning at In an action for deceit, the statute such conveyance. Cochrane v. Oliver, 7 runs from the time the plaintiff knew of III. App. 176.

the fraud. Marbourg v. McCormick, 23 In an action against a carrier, the right Kan. 38. of action accrues on the destruction of the The cause of action against an officer goods, and the statute runs from that time. for the taking of insufficient bail by his Merchants' Despatch Co. v. Topping, 89 deputy accrues on the return of non est inIII. 65. In an action against one for in- ventus upon the execution against the prinjuries caused by his negligence, the fact cipal, and the statute runs from that time. that the plaintiff's injuries extend over a West v. Rice, 9 Met. (Mass.) 564.

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