ing the suit there, the statute attaches on his demand, and his bill is afterwards dismissed, as being a matter properly determinable at law, the right of action will be preserved. Lord Chancellor King said, that, in such a case, he would take care to preserve the plaintiff's right, and would not suffer the statute to be pleaded, in bar to his demand.1 But in a subsequent case, where a bill had been depending in chancery for six years, Lord Hardwicke held, that the bill was not such a demand as to take the debt out of the statute.2 So in Virginia, it has been held, that if a bill in chancery be dismissed, on the ground that the plaintiff's claim is exclusively cognizable at law, the pendency of such suit in chancery cannot be pleaded to prevent the limitation from being a bar to his subsequent recovery at law.3 In the State of New York, previous to the revised statutes, the time that the holder of a note was stayed by an injunction from chancery from prosecuting the same, could not be replied in bar of a plea of the statute of limitations, and no case, the court said, by Bronson, J., had they met with where it was held, that an injunction out of chancery would suspend the running of the statute. The remedy of a party stayed, previous to the revision, was by application to chancery to restrain the defendant from pleading the statute.*

§ 330. In the court of chancery, previous to the statute of 4 Anne, c. 16, § 22, it was not necessary to file the complainant's bill before the issuing and service of the subpoena, to appear and answer; it being sufficient, if the bill was afterwards filed; the suit, as against the defendant himself, was then considered as commenced from the teste of the subpoena, as in suits at law commenced by original writs.5 At the present day, the filing of a bill and taking out the subpoena, and making a bonâ fide attempt to serve it, is the commencement of a suit in equity as against the defendant himself, so as to prevent the operation of the statute, if the suit be afterwards prosecuted with due

1 1 Vern. R. 74.

21 Atk. R. 1. See id. 232.

3 Gray v. Berryman, 2 Munf. (Va.), R. 181. See also, Ex parte Hawks, 1 Cheves (S. C.), Eq. R. 203.

4 Barker v. Millard, 16 Wend. (N. Y.), R. 572.

5 Hayden v. Bucklin, 9 Paige (N. Y.), Ch. R. 512. That such was the decision of Lord Nottingham, was cited Pigott v. Nowen, 3 Swanst. R. 530, copied by the reporter from Lord Nottingham's notes.

diligence. But an amended bill making new parties, has no relation to the commencement of the suit, for the purposes of the statute, and the statute will avail them at the period when they are made defendants. Until the defendants are made parties to the bill, the suit cannot be considered as having been commenced against them. It would, say the Supreme Court of the United States, "be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice, and when a final decree in the case could not have prejudiced their rights.” 2

§ 331. But a bill filed by one creditor, as plaintiff, in behalf of himself and others, will prevent the statute from running against any of the creditors, who came in under the decree. Every creditor has, after the filing of a bill, an inchoate interest in the suit to the extent of its being considered as a demand, and to prevent his being shut out, because the plaintiff has not obtained a decree within the six years.3

§ 332. In Stafford v. Bryan, in the New York Court of Chancery, the suit was not commenced until nearly eight years after the acknowledgment and promise; and although the complainant commenced two suits in the Supreme Court in the mean time, one of which was discontinued, and in the other he was nonsuited because he could not then prove sufficient to take the case out of the statute; it was held by the chancellor that neither of those suits could avail any thing.

1 Hayden v. Bucklin, supra; Webb v. Pell, 1 Paige (N. Y.), Ch. R. 564. [And the filing of the bill is the commencement of the action, although the subpoena be not taken out till the limitation has expired. Morris v. Ellis, 7 Jur. 413. See also, Purcell v. Blannerhasset, 3 J. & L. 24. Where a bill was filed in 1819, and the plaintiff having died in 1825, a bill of revivor was filed in 1828, and the defendant, continuing absent, and no appearance being entered, and one of the defendants having died in 1835, a bill of revivor was filed in 1838, and the remaining defendant being still out of the jurisdiction of the court, service of the subpoena was then effected under 2 Will. 4, c. 33:- It was held, that the bill of 1828 prevented the bar of the statute, with an intimation that the bill of 1819 would have done the same. Foster v. Thompson, 2 Con. & L. 568.]

2 Miller v. M'Intyre, 6 Peters (U. S.), R. 61. [If during the pendency of a suit in chancery, any new matter or claim is set up by the complainant, the defendant may insist upon the benefit of the statute until the time when the new claim is presented. Dudley v. Price, 10 B. Mon. (Ky.), 84. Even though founded upon papers previously made exhibits in the case. Christmas v. Mitchell, 3 Ired. (N. C.), Ch. 535.]

3 Sterndale v. Hankinson, 1 Simon, Ch. R. 393; and 2 Con. Eng. Ch. R. 197. Stafford v. Bryan, 1 Paige (N. Y.), Ch. R. 239.

CHAPTER XXIX.

OF REAL PROPERTY AND THE LIMITATION OF REAL ACTIONS.

§ 333. No code or system of jurisprudence has ever prescribed a title to property in land, which more evidently foreshows a highly civilized condition of society, than that established by the municipal law throughout this country. The possession of the land-owner by the local law of every State is, at least to every intent and purpose, as near to being allodial as was that of the Roman landholder under the jurisprudence of Justinian. All understand that the term "allodial" is used to denote property in land absque aliquo inde reddendo, or of undivided dominion; and that it is thus essentially distinguishable from the term tenure, which is significant of an estate retained by a superior. The peculiar qualities of allodial land are alienation at the will of the owner, availableness as security for the performance of private contracts, liability to be taken and sold by creditors in extinguishment of their claims against dishonest, contumacious, or bankrupt debtors, and in short, fitness to meet both the natural wants of individuals, and the exigencies of society. Between these concomitants of land-title, and those of the land-title introduced into southern and western Europe by the barbarians of the north, who subverted the empire of Rome, there was nothing consentaneous. The latter were those of dependency, vassalage, and prohibition. The right of the feudal possessor, of whatever grade, consisted alone in the usufruct, or profits yielded by the land, either in a state of nature, or under a state of rude and immethodical cultivation. The superior right, the jus proprietatis, or (according to the expression used by the early English lawyers), the feudum dominans, or (according to

1 The Roman land-owner did not hold of any superior. This possession was perfectly allodial, and wholly independent; and tenures were equally strangers to the English before the feudal policy was introduced. 1 Brown's Civil Law, Ch. III.

2 3 Kent's Com. 497.

that used by modern lawyers), the fee, remained in the lord, or principal military conqueror, from whom the limited and incumbered right was in the outset derived. Such a project of the law of landed property formed by degrees, after the Norman conquest, an anomalous complexedness in the English law in respect both to titles to possession of, and property in, land, and the judicial methods of enforcing them.▾ The existence of the latter, after having been lingeringly prolonged in the country of their nativity, for a very considerable period, has, within a few years, received a decisive and fatal blow. And yet (the fact is strange, if not incomprehensible) those relics of a barbarous age still give a feudal aspect to the otherwise sightly and striking fabric of American jurisprudence. No lawyer, it is presumed, is disposed to detract from the intrinsic merit discoverable in the piles of learning which have accumulated upon the feudal constitution, or will cease to admire the dignity and proportion, under which attractive qualities it has been exhibited by the illuminations of Fearne, Hargrave, Blackstone, and other fixed and inextinguishable "gladsome lights" in English jurisprudence. But (and more especially is it so in our country) new social exigencies, different interests, and an entire revolution in public sentiment, it is to be supposed, would render a continued adherence to judicial forms, proceeding from such a source, offensive, as well as incongruous and disadvantageous. Certainly, an overweening respect for them, in those whose condition enables them to exert control or influence over legislation, conflicts with the obvious maxims of prudential civil administration; and is not justified, even by the policy (social necessity) upon which the ancient feudal framework itself was reared upon the dispersed fragments of Roman civilization.

§ 334. Without stopping to inquire, how it was originally with the Saxon government and civil policy in England, it is not questioned that the feudal system, in the rigid, military form, characteristic of Normandy, was, in less than a quarter of a century from the conquest, firmly established throughout England, after the example of the French, who had before, but more gradually, surrendered all their allodial lands into the hands of the king, who returned them to the

1 See Inman v. Barnes, 2 Gallis. (Cir. Co.), R. 313; Barnet v. Ihrie, 17 Serg. & Rawle (Penn.), R. 174.

owners as a beneficium or feud. Hence, the maxim of the AngloNorman law, that the king is the lord paramount and supreme proprietor of all the lands in the kingdom, and is not bound by services to any superior. But, although such has ever been acknowledged as the fundamental principle of the English law of real property ever since the conquest, it has now become more of a fiction than a positive inconvenience; so that real estates are now held in England by a title free and unconditional, and essentially allodial. It was not, however, until the abolition of military tenures, in the reign of Charles II., that the feudal relation of lord and tenant entirely ceased to exist; and, consequently, the reported causes in the Courts, from the Year Books (which are redundant with writs and pleadings in real actions) down to the period of the Restoration, are, to the student, more curious as historic memorials (like cumbersome ancient armor) than in fact useful. Among the reasons which have been assigned, by the learned and venerable commentator on American law, why a very large proportion of the matter contained in the old reporters, prior to the English revolution, is now "cast into the shade," is the disuse of the subtleties of special pleading, and of real actions.2

§ 335. Rules and maxims of the law of real property in England, which were once suitable and rational, have been appealed to and maintained, since the Restoration, to an extent beyond what is justified by the modern state of society, and the changes in the modifications of property. Many abuses have been corrected, and many improvements have been introduced by the judges. Statutes have also been passed on the spur of the occasion, yet with but slight regard to harmony. In the time of the Commonwealth, a commission was appointed to consider of legal reforms, over which Sir Matthew

1 The king, however, cannot grant an allodial title, or grant land to which the reservation of tenure is not annexed, even by the express words of absque aliquo inde reddendo. Wright on Tenures.

2 1 Kent, Comm. 487. "There is such a mass of intricate and obsolete law in all the old reporters, including even Plowden, Coke, and Saunders, as renders it eminently unadvisable for the student to attempt a continuous perusal of them." Warren's Law Stud. 840. "There is something proverbially repulsive in the form and structure of our carly reports; which, to say nothing of their dreary black-letter, Norman French, dog Latin, are stuffed with all manner of obscure and ridiculous pedantries, scholastic as well as logical, involving the simplest points in endless circumlocutions, and useless subtleties." Ibid.