March ist. Absent....JOHNSON, J. and LIVINGSTON, J. BEATTY'S

STORY, J. after stating the case, delivered the opinion of the Court as follows:

It is contended by the Plaintiffs in error that the direction of the Circuit Court was erroneous, 1. Because the Plaintiffs' intestate had a good and valid title to the land surveyed under his patent, and was, therefore, entitled under the 5th section of the Maryland statute of 1791, to the money received by the Defendant's intestate therefor. 2. That this right was not barred by the statute of limitations.

In support of the first point the Plaintiffs contend that the land belonging to the state did not, by the cession of the territorial jurisdiction under the statute of 1791, pass to the United States, and was consequently liable to be appropriated by individuals under warrants pursuant to the laws of Maryland. That until 1801 the jurisdiction of Maryland continued over the whole ceded territory; and titles, therefore, might legally be acquired therein according to the public laws: and the patent of Beatty, being obtained in pursuance of those laws, gave him a complete and valid title.

On the other hand the Defendant denies each of these positions, and further contends, that the Plaintiffs are without the purview of the 5th section of the act of 1791, because that section extends only to titles then existing, and Beatty's title did not commence until April, 1792.

It is not necessary to consider the correctness of the positions urged by the respective parties as to this point, because we are of opinion that the case may well be de cided upon the second point.

The action for money had and received is clearly embraced by the statute of limitations; and it is incumbent upon the Plaintiffs to show that the present case forms an exception to its operation.

It is contended that the present suit, being a statute remedy, is not within the purview of the statute of limi

ADM'RS.

ซ. BURNES'S

ADM'R.

TEATTY's tations. But we know of no difference in this particu-
ADM'RS. lar between a common law and statute right. Each
must be pursued according to the general rule of law,
BURNES's unless a different rule be prescribed by statute; and
ADM'R. where the remedy is limited to a particular form of ac-

tion, all the general incidents of that action must attach
upon it. Upon any other construction it would follow
that the case would be without any limitation at all;
for it would be quite impossible, upon any acknowledg-
ed principles, when a right had assumed the shape of a
claim in personam, to attach to it a limitation which ex-
clusively applied to the reality. Now the statute of
limitations has been emphatically declared a statute of
repose, and we should not feel at liberty to break in
upon its general construction by allowing an exception
which has not acquired the complete sanction of au-
thority.

It is further contended, that by the operation of the act of 1791, ch. 45, Burnes must be considered as a mere trustee of Beatty, and trusts are not within the statute of limitations. We are of a different opinion. The land in controversy was clanned by Burnes in his own right, and adversely to the Plaintiffs' intestate. The money was received by him for his own use and in his own right as an original proprietor. He never admitted or acknowledged the title of the Plaintiff, and no claim or demand was ever made upon him in his life time. So far then from being received in trust, it was expressly received under a peremptory denial of any trust or right in the opposite party. Nor was the statute meant to make the adverse possessor without title a trustee for the party having title. It only substituted the action of assumpsit for the ordinary legal remedy by ejectment; and the adverse possessor of the land could no more be deemed a trustee of the money, than he could be deemed a trustee of the land itself, for the benefit of the rightful owner, against whom he held by an adverse title.

The Court are, therefore, of opinion that the statute of limitations is a good bar, and, therefore, that the judgment must be affirmed.

THIS was an appeal from the Circuit Court for the The penalty of district of South Carolina.

1

The case was submitted without argument.

the 50th sec.
of the collec-
tion law of 2d
March, 1799,
which requires
a permit for

STORY, J. delivered the opinion of the Court as fol- the landing of lows:

The principal question in this case is, whether goods and merchandize, the importation of which into the United States was prohibited by the act of 18th of April, 1806, vol. 8, p. 80, were within the purview of the 50th section of the collection act of 2d of March, 1799, vol. 4, p. 360, so that the unlading of them without a permit, &c. was an offence subjecting them to forfeiture.

It has been contended on behalf of the claimant that they were not within the purview of the 50th section, because that section applies only to goods, wares and merchandize, the importation of which is lawful. To this construction the Court cannot yield assent. The language of the 50th section is, that no goods, wares or merchandize, &c. shall be unladen, &c. without a permit;" it is therefore broad enongh to cover all goods, whether lawful or unlawful. The case, being then within the letter, can be extracted from forfeiture only by shewing that it is not within the spirit of the section. To us it seems clear that the case is within the policy and mischief of the collection act, since the necessity of a permit is some check upon unlawful importations, and is one reason why it is required. The act of 1806 does not profess to repeal the 50th section of the collection act as to the prohibited goods, and a repeal by implication ought not to be presumed unless from the repugnance of the provisions the inference be necessary and

goods imported, applies to goods the importation of hibited by law.

which was pro

HARFORD unavoidable. No such manifest repugnance appears to 0. the court. The provisions may well stand together and U.STATES. indeed serve as mutual aids.

In fact the very point now presented was decided by this court in the case of Locke, claimant, v. the United States, at February term 1813.

The judgment of the Circuit Court is affirmed with costs.

ARMITZ BROWN v. THE UNITED STATES.

British pro

THIS was an appeal from the sentence of the Circuit perty found in Court of Massachusetts, which condemned 550 tons of States, on land, pine timber, claimed by Armitz Brown, the Appellant.

the United

at the commencement of hostilities with Great Britain, cannot be condemned as ene

The act of the

D. DAVIS, for the Appellant.

This is an appeal from the Circuit Court of Massamy's property, chusetts, in which Court, the property consisting of without a le- about 550 tons of pine timber, twelve thousand staves, gislative act, authorising its and eighteen tons of lathwood, were condemned. The confiscation. libel states, that this cargo was loaded on board the legislature, de- Emulous, at Savannah, April 9th, 1812; that the cargo claring war, is belonged to British subjects; that the ship departed for not such an act. Plymouth, in England April 18th, in the same year, and Timber, floated into a salt put into New Bedford for repairs; and that the cargo water creek was there unladen, and remained there until seized by ebbs and flows, Delano, as well on his own behalf, as on behalf of the leaving the United States. As to some of the allegations in the litimber resting bel, there is no evidence whatever to support them; the on the mud at ship never departed for Plymouth, never put into New low water, and Bedford for repairs. The facts are these:

where the tide

ends of the

prevented

from floating

away at high water by

considered as

landed.

The property in question was the cargo of the Ameribooms, is to be can ship Emulous, and was seized as enemy's property, about the 5th of April, A. D. 1813, nearly a year after the same had been discharged from the ship. From the transcript in the case, it appears that the Emulous was owned by John Delano and others, citizens of the United States; that, in February, 1812, the owners, by their

บ.

agent, chartered the ship to Elijah Brown, as agent for BROWN Christopher Ide, Brothers and Co. and James Brown, British merchants; that, by the charter party, the ship U.STATES. was to proceed from Charleston, S. C. where she then lay, to Savannah, and there take on board a cargo of lumber, at a certain freight stipulated in the charter party, and proceed with the same to Plymouth, in England, to unload there, or at any other of his Britannic majesty's dock-yards in England. The ship proceeded to Savannah, took on board the cargo mentioned in the libel, and was there stopped by the embargo of the 4th of April, 1812. On the 25th of the same month of April, it was agreed between the master of the ship and the agent of the shippers, that the ship should proceed to New Bedford, where she was owned, with the cargo, and remain there, without prejudice to the charter party; which agreement is endorsed upon the back of the charter party. The ship accordingly proceeded to New Bedford, and remained there until the latter part of May following, when the cargo was finally unladed and discharged from the ship. The staves and lathwood were landed and put on a wharf. The timber was put into a salt water creek, which is not navigable, but where the tide ebbs and flows, and where the timber remained for safe keeping until the time of the seizure. The timber was secured in this creek by booms extended across the entrance thereof, and fastened by stakes driven into the flats. On the 7th of November, 1812, the property was sold to the claimant by E. Brown, the agent, in pursuance of the authority which he had for that purpose as agent of the shippers, and in pursuance of the advice of Delano, who afterwards seized it in the manner and for the purposes stated in the libel. This sale, the Appellant contends was made bona fide for a valuable consideration, which has since been paid, and after notice thereof given to Delano, in whose possession the property then was. The seizure was not made until five months after the property had been sold to the present claimant, and nearly twelve months after it was discharged from the ship. The claimant, it is admitted, is a citizen of the United States. E. Brown, the agent, by whom the property was sold, is a citizen of the United States, and James Brown, one of the owners of the cargo, is also a citizen of the United States, but resides in London and carries on trade and commerce in that city.