73, which includes within the two years' limitation, "an action upon a statute for a forfeiture or penalty to the people of this state," and with the provision contained in section 76, that "an action upon a statute for a penalty or forfeiture, given in whole or in part to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action be not commenced within the year, by a private party, it may be commenced within two years thereafter, in behalf of the people of this state, by the attorney general, or the district attorney of the county where the offence was committed."

The sections of the Revised Statutes on this subject are contained in 2 R. S. 3d ed. sec. 29, 30, 31, which provide that, "actions upon a statute for any forfeiture or penalty, to the people of this state, shall be commenced within two years;" (sec. 29;) that " actions upon a statute for a forfeiture or penalty, given in whole or in part to any person who will prosecute for the same, shall be commenced within one year after the offence shall have been committed; and that if it be not commenced within that time, by a private citizen,it shall be commenced within two years after that year ended, in behalf of the people of this state, by the attorney-general, or the district attorney of the county where the offence was committed; (sec. 30;) and that "actions upon a statute for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this state, shall be commenced within three years after the offence committed, or the cause of action accrued." (Sec. 31.)

It will be observed, that, in their general character, the proposed provisions are similar to those contained in the Revised Statutes, except that in the provision corresponding to section 31, in the Revised Statutes, the word "penalty" is substituted for the word "cause," so as to make this provision conformable to the others, in which the limitation of actions for penalties and forfeitures is prescribed. The difference in phraseology in the former statutes has given rise to much discussion, and to very contradictory constructions, by the courts, of the

terms used; which it seems expedient to determine, by a legislative declaration on the subject.

For example, in the case of Van Hook v. Whitlock, 7 Paige, 379-381, Chancellor Walworth regarded the provision of the Revised Statutes, which applied to actions " for any penalty or cause," as extending to actions other than for penalties or forfeitures; such as actions against the stockholders of a corporation to charge them individually for its debts, upon a dissolution of the company; on the ground, that such actions were founded solely upon a statutory liability. In the same case, in the court of errors, on appeal, (26 Wend. 51-53,) Chief Justice Nelson discussed the question, and expressed an opposite opinion; deeming that it ought not to be construed as extending beyond fines and penalties or forfeitures. But the point was not decided, the result of the cause having turned upon other questions.

More recently, the supreme court, in Freeland v. M'Cullough, 1 Denio, 421-424, agreed with Chancellor Walworth in his construction, and held the section applicable to the class of cases referred to by him; and this case, or one in which a similar principle was held, has, as we are informed, been since reversed by the court of appeals; thus interpreting the statute according to the views expressed by Chief Justice Nelson.

The conflict of opinion, thus existing, seems to render further legislation necessary; and the question therefore presents itself, which is the proper rule? We are disposed to recommend it, in accordance with the views of Chief Justice Nel

son.

He deprecates the extension of the three years limitation in the section of the Revised Statutes referred to, beyond actions for penalties and forfeitures, because it would have the effect of presenting "a short bar of three years to every action and cause of action arising out of and founded upon any statutory regulation, such as suits against heirs, executors and administrators, the president and other officers of corporations under the general banking law, besides many others that might be enumerated." (26 Wend. 53.) The distinction between the two classes of cases, is broad and distinct, and it would seem, that the limitation applicable to each should be equally

so.

There is good reason for a short limitation to actions on penalties and forfeitures, because they are disfavored in the law; but no reason seems to exist, why a liability for a debt created by statute, and which in most cases is founded on as strong an equity, as where it results from the direct agreement of the party, should stand upon a different footing from the latter, as respects the period within which it should be enforced.

3. An action for trespass upon real

property.

The same as 2 R. S., 3d ed., 394, sec. 18, subdiv. 5; excepting the substitution of the words "real property," in place of "lands."

4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property.

The same as 2 R. S., 3d ed., 394, sec. 18, subdiv. 6; excepting that the words "including actions for the specific recovery of personal property," are substituted in place of "including actions of replevin." This change of phraseology is rendered necessary, by the provision proposing to abolish the existing forms of action.

5. An action for criminal conversation, or for any other injury to the person or rights of another, not hereinafter enumerated.

The same as 2 R. S., 3d ed., 394, sec. 18, subdiv. 7; excepting that actions for libels have been taken out of the six years limitation, and, as will be seen by section 73, transferred to the class which are within the two years limitation. The propriety of this change is confidently submitted to the legis lature. Where the action involves, as cases of libel and slander and the like, generally do, mere feeling, rather than a substantial question of right-or, at all events, where a long delay in bringing the action affords pretty certain evidence that

the party has sustained but little injury from the act complained of, there is no reason for allowing it to be brought at a period so long after the accruing of the cause of action.

6. An action for relief, on the ground of fraud; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party, of the facts constituting the fraud.

The same as 2 R. S., 3d ed., 399, sec. 51; except that, to conform it to the uniform course of proceedings in cases, whether of legal or equitable cognizance, as proposed by this act, the word "actions" has been substituted for "bills for relief."

§ 72. Within three years:

1. An action against a sheriff or coroner, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty; including the non-payment of money collected upon an execution. But this section shall not apply to an action for an escape.

This provision is intended to embrace the class of cases included in 2 R. S., 3d ed., 394, sec. 22; by which "all actions against sheriffs and coroners, upon any liability incurred by them, by the doing any act in their official capacity, or by the omission of any official duty, except for escapes, shall be brought within three years after the cause of action shall have accrued, and not after that period." That provision having been, however, the subject of frequent construction, it is so altered, in the above proposed subdivision, as to contain the rule, not merely as prescribed by the legislature, but as settled by judicial construction. The words, "and by virtue of their office," are introduced in conformity to the construction given to the provision of the Revised Statutes, by the case of Norris v. Van Voast, 19 Wend. 284; in which it was held not to ap

en

ply to an action of trespass, against a sheriff, for an alleged wrongful taking of personal property, which he justified under a writ of replevin. The provision was, for the first time, acted in the Revised Statutes, and was designed to relieve the sureties of sheriffs, by requiring suits to be speedily brought, where they stood responsible for those officers; (Revisers' Notes, 3 R. S. 2d ed. 702 ;) and in terms, as well as in intent, was held by the supreme court, in the case referred to, to apply only to cases of official liability, such as enabled the party aggrieved to resort to the official bond; or, in other words, to acts done by virtue, and not by color of office. The same distinction was also sustained in Ex parte Reed, 4 Hill, 572, 573.

The words, "including the non-payment of money collected upon an execution," are introduced, in consequence of some doubt as to the existing rule. By the construction given to the section of the Revised Statutes, from which this is taken, in the case of Elliot v. Cronk's administrators, 13 Wend. 35, 40, it was held, that an action of that nature, as for money had and received, was one upon contract or legal liability, and therefore came within the six years limitation. The effect of this construction would be, to defeat the object of the section, so far as the protection of the sheriff's sureties is concerned; they being clearly liable for such an omission of duty on bis part. (The People v. Ring, 15 Wend. 623.) In the more recent case, however, of Shepard v. Hoit, 7 Hill, 198, 200, an action of that nature, against a sheriff, was regarded as one to which the limitation of three years was applicable.

The provision in the text has, therefore, been proposed with a view to settle the rule, and to make it conformable to the original intention of the legislature, as expounded by the

courts.

2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this state, except where the statute imposing it prescribes a different limitation.