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PART 2. in such state. These laws are a part of the lex fori, and are to be construed and applied by the national courts in the same manner as by the state courts. To illustrate what is here said, it will be sufficient to cite a single case, which I am induced to select, because, while it will serve the purpose of illustration as well as any other, it determines moreover a particular question of considerable practical interest. The case of M'Elmoryle v. Cohen (13 Peters, 312), presented the question whether a law of a State (Georgia) limiting the right of action (to five years) on judgments obtained in courts other than the courts of such state, was not a violation of that provision of the constitution of the United States, by which it is declared that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of other states. But the supreme court were unanimously and clearly of opinion that the case did not fall within the scope of this provision. The act of limitation, in no respect, impaired the validity or conclusiveness of the judgment as to the merits in the original suit; and only assumed to regulate the remedy—a power undeniably within the legislative authority of the states.

But there is one very numerous and important description of cases to which the state limitation acts do not apply; namely, those in which the United States are plaintiffs. It was so held by Mr. Justice STORY, in the case of The United States v. Hoar (2 Mason, 311); and in the late case of The United States v. Knight (14 Peters, 301, 315), this doctrine was incidentally asserted by the supreme court, and treated as unquestionable. It is in fact but an application in this country of a long established doctrine of the common law, expressed by the familiar maxim, nullum tempus occurrit regi: a doctrine not founded

in prerogative, even in England, but resting on a great principle of public policy, which pertains alike to all governments, viz.: that the public interests should not be prejudiced by the negligence of public officers, to whose care they are confided. This principle, it is obvious, comprehends suits instituted by public officers in behalf of the United States, no less than those brought in the name of the United States; and the doctrine, it is presumed, therefore, is alike applicable to both descriptions of cases.

In the case of Brown v. Jones (2 Gallis., 477), it was held by Mr. Justice STORY, that the statute of limitation of Massachusetts did not apply to suits in admiralty for seamen's wages. The terms of the act (which were substantially a transcript of the statute of limitations of 21 James), were not considered to be applicable to a proceeding in admiralty; the case moreover did not fall within the terms of the above mentioned provision contained in the judiciary act, adopting the laws of the states as rules of decision in trials at common law; and, inasmuch as the admiralty and maritime jurisdiction is confided exclusively to the courts of the United States, it was doubted whether a statute of limitations of a state, could, proprio vigore, apply to suits on the admiralty side of these courts. And in the case of Willard v. Dorr (3 Mason, 91), it was further held that the statute of Anne, limiting suits in the admiralty for seamen's wages to six years, is not operative in the courts of the United States; the colonial vice-admiralty courts not being named in the act-there being no evidence that this limitation had in fact ever been adopted by them-and it being by no means clear, even if it was known to have been so adopted, that it would, therefore, be binding on the admiralty courts of the United States.

CHAP. 2.

PART 2.

It follows, therefore, from this brief analysis, that all prosecutions or suits for penalties or forfeitures are to be commenced within five years; that suits on marshal's bonds are to be brought within six years; that with regard to all other suits in which the United States are plaintiffs there is no limitation; that all suits at common law between private parties are governed in this respect by the laws of the state in which they are prosecuted; and that in regard to suits of admiralty jurisdiction (except such as are brought to enforce municipal forfeitures), there is no statute limitation-these being subject only to such limitations as result from those principles of justice and expediency which regulate the exercise of admiralty jurisdiction.

The better opinion seems to be that, in suits on penal statutes, the statute of limitations need not be pleaded; but may be taken advantage of under the general issue. Buller's Nisi Prius, 195. Parsons v. Hunter, 2 Sumner, 419.

SECTION IV.

Who are privileged from arrest.

The immunity from arrest of ambassadors, other public ministers, their domestics and domestic servants, has already been sufficiently stated and explained in the preceding chapter.

Senators and representatives in congress are also privileged from arrest in all cases, except treason, felony and breach of the peace, during their attendance at the session of their respective houses, and in going to or returning from the same. Const. U. S., art. 1, § 6. See Lewis v. Elmendorf, 2 Johns. Cas., 222.

The non-commissioned officers, musicians, seamen and mariners, in the naval service of the United

States are exempted during the term of their service CHAP. 2. from all personal arrests, for any debt or contract.1 And no non-commissioned officer, musician, or private in the army of the United States, "shall be arrested, or subject to arrest, or be taken in execution for any debt, under the sum of twenty dollars, contracted before enlistment, nor for any debt contracted after enlistment."

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By the common law, parties to a suit, their attorneys, counsel and witnesses are privileged from arrest, while going to, attending upon, and returning from court; and such it is believed is the rule in all the districts of the Union. This privilege, however, extends only to exemption from arrest, and does not preclude the service of a mere summons to answer. Peters's C. C. Rep., 41. In Hurst's case (4 Dall., 387; S. C., 1 Wash. C. C. Rep., 186), it was held that the court in which a witness is attending has authority to discharge him from arrest made under process from another court. A witness attending the circuit court for the district of Pennsylvania was accordingly discharged from arrest in virtue of process issued by the supreme court of the state."

1Act of July 11, 1798, ch. 72, § 5: 1 Stat. at Large, p. 594. Act of March 16, 1802, ch. 9, § 23: 1 id., p. 132.

The process in this case was a capias ad satisfaciendum. The motion to discharge was resisted on the ground that this privilege did not extend to arrests in execution; and in addition to several English authorities cited in support of it, the case of Starret (1 Dall., 356), was relied upon, in which Chief Justice M'KEAN, at*nisi prius, recognized this distinction between mesne and final process, and refused to discharge a witness taken in execution. It was contended, moreover, that the discharge would subject the sheriff to an action for an escape, should the state court adhere to this decision of the Chief Justice. But the circuit court denied the existence of the distinction contended for, and held also that the discharge of the party by a court having competent jurisdiction, would protect the sheriff, even though it should be considered erroneous by the court in which he might be sued for the escape.

PART 2.

SECTION V.

Of the first process.

We have already seen that the forms of process used in the supreme courts of the several states are adopted by congress for the prosecution of suits in the national courts.1

In most of the states, it is believed, suits at law are commenced by the writ of capias, corresponding substantially with the English capias ad respondendum.

In the State of New York this was the only mode of instituting personal actions against natural persons, until, by the Revised Statutes, the plaintiff was permitted, at his option, to commence his suit by merely filing in the office of the clerk of the court, a declaration; entering the usual rule to plead; and serving a copy of the declaration, together with a rule to plead, personally on the defendant. This legislative regulation has been adopted by rule in the circuit and district courts of the northern district.2 In the southern district suits at law not affecting the title or possession of land, are required to be commenced by capias ad respondendum or summons.3

1 The practice of using parchment instead of paper for all writs, was probably universally adopted originally, in the federal courts. Whether the use of this material would be considered essential to the validity of process in these courts, the decisions of the courts, as far as I am informed, afford no means of determining. In the state courts of New York parchment was considered indispensable for this purpose, until, by an act of the legislature, passed in 1815, the use of paper was expressly authorized. Since that period, the practice of the state courts, in cases not otherwise provided for, has been adopted by general rules in each of the national courts in New York. However it may be, therefore, in other states in this state, parchment is not now necessary. 2 See Appendix, Rule 11, D. C. N. D. N. Y.

The following explanatory observations relative to the rules of the national courts in New York may be useful in this place. They were framed before the late radical reorganization of the state judiciary and the adoption of a new system of procedure; and, with slight exceptions, were in accordance with the antecedent practice of the former

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