possession of such goods, nor give a right of lien on them for the balance of accounts. The goods themselves must come to the factor's hands in order that the lien should attach, and the owner may prevent it from attaching either by selling the goods before this occurs to a third party or by revoking the factor's authority, and intrusting them to another person. 1 Cal. 80, 81.

SEC. 9. The master of a ship has a lien upon the goods shipped for the freight agreed to be paid thereon, and is not bound to part with any of them until the whole freight is paid. Offering to give or giving good security is not payment. Delivery of a part of the goods shipped to one consignee does not defeat a lien upon the remainder for the whole freight. The delivery of goods and the payment of freight are concurrent acts, and neither party is obliged to perform his part of the contract without the other being ready to perform the correlative act. The master cannot require payment without a readiness to deliver, and the consignee cannot demand delivery without a readiness to pay. 1 Cal. 44.

SEC. 10. The general principle is, that where the law compels a person-such as an innkeeper or common carrier, to take the care and custody of goods, he shall have a lien on the property for his reasonable and just charges therefor; and the same rule applies to a person who by his labor and skill has imparted an additional value to the goods. But one who merely provides food and takes the care of an animal, as an agistor or livery-stable keeper, has no lien on the property, unless there be a special agreement to that effect. An agistor of cattle is under no legal obligations to take the charge of or keep any cattle that may be brought to him for that purpose. He is at perfect liberty when he receives stock to keep or impose such terms and conditions as he may deem proper; and he may require an agreement that he shall have a lien upon the animals for his reasonable charges or for the agreed price, if he shall deem it necessary for his security. That class of bailees, however, who are required by law to take the charge and custody of and to keep animals for others, have no right to impose conditions upon those who employ them; and the law,

therefore, gives them a lien upon the property for their security. 23 Cal. 364, 365.

SEC. 11. If by the original contract made, the carriers waived any lien for freight, and instead of leaving their payment to the implication of law, they contracted to give a credit for the freight, then, whether they had parted with the possession or retained it, they must look only to the contract they had entered into for their security. Where it appears clearly from a charter party that the intention of the owner of the ship and the charterer is, that the former shall have no lien on the freight but shall give a personal credit to the charterer, the former loses his right of lien on the cargo, and can look only to the personal responsibility of the charterer for the payment of the hire of the vessel. 1 Cal. 420, 423.

SEC. 12. A right to detain goods until the freight thereon is paid grows out of the usage of trade. 1 Cal. 424.

SEC. 13. The vendor of real estate has an equitable lien on the land sold for the payment of the purchase money, even where the title has been fully conveyed, if he has taken no security for its payment; and the rights of a vendor who has not conveyed the title cannot be of less efficacy. It is but a just precaution on his part that he should withhold the title until the purchase money is fully paid, and the law will not deprive him of the only security which he has. His position is analogous to that of a mortgagee, and he may enforce his rights in the same manner. 2 Cal. 142, 143. A vendor of real estate who makes no conveyance, but gives a bond, conditioned for the execution of a conveyance on payment of the purchase money by the vendee, has an equitable lien on the land for the purchase money, and holds the legal title as a security for the enforcement of his lien. 4 Cal. 111.

SECTION 1. Actions other than for the recovery of real property can only be commenced as follows:

Within five years: An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States.

Within four years: An action upon any contract, obligation or liability, founded upon an instrument of writing, except those mentioned in the preceding section.

Within three years: 1st. An action upon a liability created by statute other than a penalty or forfeiture. 2d. An action for trespass upon real property. 3d. An action for recovery of personal property. 4th. 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.

Within two years: 1st. Action upon a contract, obligation or liability, not founded upon an instrument of writing, and on an open account for goods, wares and merchandise, sold and delivered, and for any article charged in a store account. 2d. An action against a sheriff, coroner or constable, 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 of money collected upon an execution; but this section shall not apply to an action for an escape.

Within one year: 1st. An action upon a statute for a penalty or forfeiture, where the action is given to an individual or to an individual and the state, except where the statute imposing it prescribes a different limitation. 2d. An action for libel, slander, assault, battery or false imprisonment. 3d. An action upon a statute for a forfeiture or penalty to the people of this state. 4th. An action

against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.

SEC. 2. In an action brought to recover a balance due upon a mutual, open and current, account where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.

SEC. 3. An action for relief, not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued.

SEC. 4. The above limitations shall apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties. Gen. Laws, 4359-4362.

SEC. 5. Statutes of limitation have been properly denominated "statutes of repose," because the law, for the purpose of preventing litigation, has wisely determined that there should be some period affixed beyond which a party ought not to be allowed to assert stale demands, and that the presumption of payment or of title ought to arise after he had neglected to assert his right for a certain length of time. These statutes are designed to affect the remedy and not the right or contract; they do not enter into the contract as a part of the law thereof. It would be inconsistent with sound morality and wise legislation to suppose that it was ever intended that when a party gave his obligation to pay a particular debt he was presumed to have had in his mind a particular period of time beyond which, if he protracted his obligation, his liability would cease. They have no retrospect beyond their passage. 7 Cal. 3–5.

SEC. 6. A mere naked receipt, in writing, acknowledging the delivery of money is not a contract, and does not import a promise, obligation or liability, and an action upon it is therefore barred by the statute of limitations in two years. A receipt or acknowledgment, in writing, for money, which also contains a clause stating that the money received is to be applied to the account of the person from whom received, partakes of the double nature of a receipt and contract, and shows upon its face a liability to account, and an action upon.it is not barred by the statute of limitations until four years have expired. 24 Cal. 322.

SEC. 7. The statute of limitations requires an action on a judgment to be brought within five years; but when a judgment is rendered, payable in installments, the time begins to run from the period fixed for the payment of each installment as it becomes due. 23 Cal. 352.

SEC. 8. A foreign judgment is not "a contract, obligation or liability, for the payment of money, founded on an instrument of writing executed out of this state," within the meaning of the statute of limitations. The act of 1852 does not alter the time, as provided in the act of 1850, for commencing suits upon this class of liabilities. 4 Cal. 287.

SEC. 9. Judgments recovered in the courts of this state are within the first subdivision of the seventeenth section of the limitation act, and actions thereon are barred by the lapse of five years from the time they are rendered. 20

Cal. 211.

SEC. 10. Where accounts bear upon their face the words, "audited and approved," and certified to be correct, such words are sufficient to create them instruments of writing, within the meaning of the statute. Such instruments are not barred by that portion of the statute of limitations applying to accounts. 5 Cal. 57, 58.

SEC. 11. They are not intended to protect a party who has by fraudulent concealment delayed the assertion of a right against him until after the expiration of the period limited by the statute. All the exceptions specified in the statute which prevent its running are cases where a party is not in a situation to assert fully his rights. The reason of those exceptions would seem to apply with equal force to a case of fraudulent concealment. In all cases a fraudulent concealment of the fact, upon the existence of which the cause of action accrues, is a good answer to the plea of the statute of limitations. The fraudulent concealment may be established by proof on the trial. If one is silent when he should speak, justice will compel him to silence when he would speak. 8 Cal. 458, 461, 467.

SEC. 12. Statutes of limitation do not act retrospectively; they do not begin to run until they are passed, and consequently cannot be pleaded until the period fixed by them. has fully run since their passage. 6 Cal. 433: When plaint