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the judg necticut ; and the latter pleaded the statute of limitations ; but ments of courts of sis the justice gave judgment for the plaintiff. This judgment was ter states on reversed by the supreme court on certiorari. the of foreign In Hubbell v. Coudrey the action was debt on a judgment rejudgments.

covered in the county court in Connecticut; and the defendant pleaded, 1st, nil debet; 24, That the action did not accrue within six years : and, upon general demurrer, judgment was for the defendant.

Per Cur. The statute of limitations may be pleaded to all actions of debt on simple contract; and the judgment in this case is viewed in this light. The judgment is not a specialty, but the debt only a simple contract debt. The demurrer; therefore, the court held, was not well taken. Sed. see ante No. 1.

In Virginia, the court held, that an action on a judgment in North Carolina, was governed by the law of the former as to the remedy; but the statute of limitations did not affect the case.

5.

state was

WILLARD v. DORR, 3 Mason's U. S. Rep. 91; S. C. 3 Mass.

Rep. 161; BROW'N V. JONES, 2 Gall. U. S. Rep. 477. The statute of limita Story, J. The statute of a state was held to be no bar to a suit tions of a

in the U. S. courts when sitting in admiralty. It is not a little held of no remarkable, that the act of congress regulating suits for mariadmiralty ners' wages in the admiralty, contains no limitation as to the side of the U.S. courts

time, within which such suits shall be brought. And as the ad-
miralty and maratime jurisdiction is exclusively confided to the
courts of the United Siates, it would be very difficult to main-
tain that a statuie of limitations of a state could proprio vigore,
apply to suits on the admiralty side of these courts.
vision in the 24th section of the judiciary act of 1789, extends
only to trials at common law; and in no other cases can state
regulations or limitations govern the courts of the United States,
unless they fall within the principle of universal law, which
direct and limit the application of the lex loci.

The pro

6.

DOUGHERTY V. SNYDER, EX'R. 1826, 15 Serg. & Rawl. Penn.

Rep. 84, Contract valid in Lou A contract made in Louisiania between husband and wife, and isiana where it

valid there, may be collected against his executors in Pennsylvawas made nia within six years from his death. The case was thus : the between husband

plaintiff intermarried with the testator in 1791 ; and then borand wife; rowed a sum of money of her to trade upon, giving her an acmay be en

knowledgment in writing for the same. He went to Philadel- forced

against his phia soon after, and there lived until his death in 1820, leaving executors his wife at New Orleans. She brought this action within a year wania with after his death to recorer the money with the interest.

The in six years

after his executors set up the statute in bar. The court held, that the death. case was within the letter of the act: “If such person at the time of the action accrued, be within the age of twenty-one years, a feme covert, &c., the same person shall be at liberty to bring the same action, so as that they take the same within six years after they come of full age, discoverture," &c. The contract being shown to be valid, the redress must be according to our laws. Our statute governs as to time and the form of action. The contract was barrable; but it is not barred. The remedy only was suspended, on the ground that the husband and wife formed but one body; but, she being the survivor, has all the right not extinguished by the marriage. *

VII. OF LIMITATION IN CHANCERY,

1.

KANE v. BLOODGOOD, 7 Johns. Ch. Rep. 90, 114. The chancery doctrine in England, as well as in New-York, The statate is, that, except in cases of strict trust, which, from their nature chancery as are cognizable only in chancery, there is very little difference in well as at

law, except the application of the statute of limitations in the two jurisdic- in cases of tions of law and equity; and Chancellor Kent is of opinion, that strict trusts. even in these excepted cases, when the trustee shall put himself in hostility with the cestui que trust, and set up an adverse claim or right, the statute will be a shield to him, if he chooses to shield himself behind it.

* In Richards v. Richards, 2 B. & A. 447, or Ham. Dig. p. 144, the same principle was rocognized. The wise lent her husband money and took his boto with others as his sureties, the court held that she might sue for it after his death. Ld. Tonderden says : No action could be brought against the husband, because he must have joined as plaintiff; and none against the other makers of the note, because they were sureties for the husband. As to the statute of limitations; the plaintiff being a married woman, she had six years after the death of her husband to bring the action. Upon his death an action accrued to her, in her own right.

☆ + C. J. Parker observcs, (9 Pick. 247) “ As early as the time of Ld. Camden, it was asserted, that as often as parliament had limited the time of actions and remedies to a certain period in legal proceedings, the courts of chancery adopted that rule and applied it to similar cases in equity; 3 Bro. C. C. 639. And, before his time, Ld. Macclesfield drew the line distinctly betwcen those trusts which are not affected by the statute, and those which are governed by it, limiting to former to

2.

ore suo

FARNAM, ADM'R v. BROOKS, 9 Pick. Mass. Rep. 212. The statute here oper

The defendant was an insurance broker, from 1783 to 1803; ates ex vig and the plaintiff's intestate had underwritten in his office to a both at law vast amount. The parties also, were secret partners. Defendand in equi ty except

ant discontinued business in 1803; and the intestate died in 1808. ing in cases In April, 1808, the defendant paid to the representative $60,000 deed or will, and received a receipt in full. The plaintiff sought to

open the settlement, not by direct allegations of fraud in the bill; but upon the ground that the facts stated constitute fraud, if not direct, yet, of a constructive nature, such as is sufficient to vitiate and destroy any contract or bargain in equity; 8 Wheat, 421; 18 Ves. 481. Parker, C. J. observed : This being the first opportunity of considering the application of the statute to processes in equity, it has become our duty to consider it. In England the statute is not binding ex proprio vigore; but they exer. cise a very broad discretion in this particular. But, with us, it is different. It operates here ex vigore suo, in equity as well as law. But trusts are excepted, because they were never in this state subject to action at law; but the court confined it to direct trusts by deed or will, or perhaps by appointment of law such as executors, &c. But partnerships, agencies and the like, are held to be subject to the statute in England. And this doctrine was adopted in Robinson v. Hook, 5 Mason, 139.

As to fraud, he said, upon the examination of the authorities cited, we do not discern any material difference in their applicaion in law and in chancery.

3.

CODMAN Y. ROGERS, 10 Píck. Mass. Rep. 119; HAWLEY V.

CRAMER, 4 Cowen's N. Y. Rep. 718. And in cas es not strict In cases not stricty bárred, but depending on analogous realy barred; if the rea

sons to those on which the statute is found, a court of equity sons are an will consider the statute as a guide to its discretion, and refuse

those only which are mere creations of equity and wholly unknown at common law. Lord Hardwicke followed the same track, as in Sturt v. Mellish, 2 Atk. 610. The courts having greatly departed from this line are now returning to it, as the common law courts have been returning to the spirit of the statute.

In Medlicot v. O'Donel, 1 B. & B. 166, the Chancellor says, this court is bound to adopt, in cases where the equitable and legal title so far correspond, that tho only difference between them is, that the one must be enforced in this court, the other in a court of law. And the same principle will apply in cases of fraud, whero the facts constituting the fraud are known, where there is no subsisting trust, or continuing influence, the same principle will apply.

leave the party to his

relief ; leaving the party to his legal remedy, if he has any legal alorys

equity will rights.

In Hawley 5. Cramer, the statute was held to be a bar by remedy at analogy in a case of implied trust, where persons claiming in!.w. their own right were nevertheless considered trustees.*

4.

it will not

Lion.

Chapin v. COLEMAN, Sept. T. 1831, 11 Pick. Rep. 331. Bill in equity: two of the defendants severally pleaded the If the stat statute of limitations, and filed answers in support of the pleas. ed in bar of The plaintiff excepts to these answers on grounds independent bill, the an of the bar set up, referring to matter which had no tenden- swer must cy to avoid the operation of the statute ; and the court over the charges ruled the exceptions. Wilde, J. said : The defendants were

in thc bill

which go la bound to answer all the charges in the bill which may avoid the show a new

promise, or bar by showing a new promise ; but they were not bound to answer to the original claim or cause of action. Where a new support the promise or an acknowledgment of a debt is charged in the bill, need no: un to avoid the operation of the statute, the defendant is bound to swer the

original deny the promise or acknowledgment charged, by averment in cause of ag the plea, and also, by answer in support of the plea; Beames Pl, 164. And this is necessary, because upon argument of a plea, every fact stated in the bill and not denied by answer in support of the plea, must be taken to be true. But the defendant is not bound to answer to the original cause, because that may well be admitted consistently with the bar pleaded ; and the intent of the plea is to rest the desence on a single point which may bar the whole demand, without going into an answer as to the rest of the bill. It was formerly doubted whether the statute was a bar to a bill of discovery ; but it is now well settled, that a plea, when good to the relief, is good also to the discovery; especially, if the bill is for relief as well as discov, ery, which was the ancient doctrine; and, at the present time, the same principle applies to a bill of discovery merely. The plaintiff may disprove the averments in the plea, if he has evidence to show a new promise ; otherwise, the bill, as to these defendants, will be dismissed.

5.

ATWATER v. Fowler, 1 Edw. V. Ch. Rep. 417, The vice chancellor observed: There is no doubt but that the The statute

cflimita * There is said to be no analogy in a case of trust, to the statute of limitations ; 1 Meriv. Rep. 495.

tions is a

statute of limitations may be a bar to a suit in equity, by one bar in equi ty as well partner against another, for an account and settlement of their as at law in joint concerns, unless the saving clause in favor of accounts, tween part concerning the trade of merchandise, between merchant and the case be merchant, applies to the case. Both at common law and by within the

statute, an action of account may be prosecuted between partexception

ners. The remedy by bill in equity is only a concurrent one. chant's ac The action of account is expressly mentioned as one of the

remedies to be prosecuted within six years; and this court, acting in obedience to the statute, though not in terms included in its provisions, gives the same effect to it as a court of law, in a case of concurrent jurisdiction.

as lo mer

counts.

6.

HUNTER'S EX’rs v. SPOTSWOOD, 1 Wash. Rep. 146; WAMBUR

ZEE v. KENNEDY, 4 Dess. Rep. 522. Cases of trust and Cases of trust or fraud are, in equity, considered not within fraud are the statute of limitations. not within the statute

7.

Lulc effcct.

Van Rhyn v. Vincent's Ex'Rs. 1 M'Cord's Ch. Rep. 314;

Ashley v. Denton, 1 Lit. Rep. 91; Lewis v. STAFFORD,

4 Bibb's Rep. 319. But courts

The statute of limitations does not extend to courts of equity; of equity equally but they have in practice adopted the statute. But courts of

courts of law nres equity, equally with courts of law, consider themselves bound bound to by the statute. give the sta

8, TURNER V. DEBELL, 2 Marsh. Rep. 384; M'Dowell v. H:ATH,

3 ib. 323; Hunt v. WICKLIFF, 2 Pet. U. S. Rep 212.

A demand which is barred at law, will be barred in equity; Consequent for the latter court is bound as well as the former by the statute. ly a de mund which is barred by atlaw will BULKLEY v. BULKLEY, 2 Day's Conn. Rep. 363; MANDEVILLE be barred in equity.

v, Wilson,5 Cranch's U. S. Rep. 18; Wilson v. Koonte,

7 ib. 202. It must be

It was held, that even in the case where length of time was set out in the answer relied upon as a bar in equity, it must be averred in the answer; it is by pre or, otherwise the respondent will have no opportunity of showsumption. ing that he comes within the exception. It seems, howerer, to

have been held in the case in Virginia, that a defendant might plead the statute specially to an attachment without answer.

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