1 late and control the rights of the United States. The mischiefs, too, of such a construction would be very great. The public rights, revenue, and property, would be subject to the arbitrary limitations of the States; and the limitations are so various in these States, that the government would hold their rights by a very different tenure in each." Agreeably to this construction was the following decision: B., a deputy commissary-general of the United States, received from M., a deputy quartermaster-general, the sum of ten thousand dollars, and acknowledged the same by a receipt signed by him, with his official description. The United States, it was held, could treat M. as their agent in the transaction, by making B. their debtor, and to an action brought against him for money had and received, the statute of limitations is no bar.2 § 40. In a case in the Supreme Court of New York, it was insisted that the rule does not apply to a claim which the United States takes as transferrees from another, even though they acquired the legal interest. This, the court said, would no doubt be true, if the statute had begun to run against the claim while it was in the hands of the assignor; but in the case at bar it did not. The demand in question was a promissory note, of which the government of the United States became owner and holder before it became due; and the statute, therefore, was no defence to the action. But where before the transfer to the United States, of an instrument which was the evidence of debt, the term prescribed by the statute had elapsed, it can require no argument to show that the transfer of such claim to the United States, cannot give it any greater validity than it possessed before the transfer.+ § 41. Though the United States is a stockholder in the Bank of the United States, and is so far a party in all suits to which the bank is a party, the doctrine of nullum tempus occurrit regi, does not apply to exempt the bank from the operation of the statute of limita 1 United States v. Hoar, supra. [McNamee v. The United States, 6 Eng. (Ark.), 148.] 2 United States v. Burford, 3 Peters (U. S.), R. 12. 3 United States v. White, et al., 2 Hill (N. Y.), R. 59. Per Mr. Justice M'Lean, in giving opinion of the court, in United States v. Burford, 3 Peters (U. S.), R. 30. tions; for it is a settled principle, that where a sovereign becomes a member of a trading company, he divests himself, with reference to the transactions of the company, of the prerogatives of sovereignty, and assumes the character of a private citizen.1 1 Bank of the United States v. McKenzie, 2 Brockenb. (Cir. Co.), R. 393. [And a county may set up the statute against the claim of a constable for fees for the service of criminal process. County of Lancaster v. Brenthall, 29 Penn. St. R. 38. And so a city may be barred of their right to land, as in the case of removing so much of a building which projects into the street, by more than twenty-one years of open and notorious possession by the owner of the encroaching premises. City of Cincinnati v. Evans, 5 Ohio (N. S.), 594.] CHAPTER VI. OF THE COMPUTATION OF TIME. § 42. THE rule of the civil law is that prescription only begins to run from the time when the creditor has a full and perfect right to prosecute his demand. The same rule holds, of course, in respect to the legislative acts of limitation of Great Britain and of those of the United States. The time limited, in other words, is to be computed from the time at which a right of entry accrues, and from the time at which a creditor is authorized first to commence a suit. If the contract is to pay money at a future period, or upon the happening of a certain event, the statute, it is very clear, is inoperative, until the specified period has elapsed, or the particular event has occurred; or if upon condition, not until the condition has been performed.2 In general, it may be said that it is a rule in courts of equity, as well as in courts of law, that the cause of action or suit arises when and as soon as the party has a right to apply to the proper tribunals for relief. § 43. Herein is presented a question, which, in a given case, might be of much moment, namely: Whether in the computation of time 1 Evans's Pothier, 404. 2 2 Godb. 437; Fenton v. Emblers, 1 W. Bl. R. 353; Waters v. Earl of Thanet, 2 Gale & Dav. R. 166; Helps v. Wintherbotham, 2 Barn. & Adol. R. 431; Rhodes v. Smethurst, 4 Me. & W. R. 42; Freake v. Cranefeldt, 1 Mylne & Craig, Ch. R. 499; Arnold v. United States, 9 Cranch (U. S.), R. 104; Miller v. Miller, 7 Pick. (Mass.), R. 133; Codman v. Rogers, 10 id. 112; Jacobs v. Graham, Black. (Ind.), R. 392, and other cases which will be cited in the course of the following chapter. 32 Story's Eq. Jur. § 1521 a. [The general rule, as stated in the text, is well settled; but the difficulty is to determine when the party has a right to apply to the proper tribunals for relief. And this question has, perhaps, given rise to as much litigation as any other arising under the statute of limitations, without, however, affording the means for extracting any general rule. Its solution must depend mainly upon the facts and circumstances in each particular case. Cases illustrative will be found in their appropriate places. As to what constitutes commencement of action, see post, § 312.] under the statute, the day on which the cause of action accrued, is to be included or excluded. If there is to be no fraction of a day, the whole day upon which an act is done, or a liability incurred, must either be included in the computation, or it must be entirely excluded. Upon this point the decisions have been contradictory, and a distinction appears to have been taken in the earlier cases, in relation to it between the common law and the law-merchant. In the view of the latter, the day of the date of a bill of exchange, or of an acceptance, or of a promissory note, is excluded.2 But by the earlier decisions, in cases of a different nature, the day upon which a liability is incurred, is included. It has been said by Lord Mansfield, that the certainty of a rule is of more importance than the reason of it; and the truth of the proposition as applied to the present subject, appears plainly enough. It must be left to the reader to deduce a certain rule from the condition of the law upon the subject, as it now stands. § 44. The case referred to in most of the subsequent cases, either with or without approbation, is that of Norris v. The Hundred of Gautris. That was an action on the statute of Hue and Cry, where the robbery was laid and proved to have been on the 9th of October, 13 Jac. I., and it was held that the action brought on the 9th October, 14 Jac. I., was too late. That is, the day of committing the offence is to be included. The words of the act were, 66 That no person shall take any benefit, &c., except he or they so robbed shall commence his or their suit or action within one year next after such robbery." It was held by Lord Mansfield and the whole court, in The King v. Adderley, that by the true construction of the statute, 20 Geo. II., a sheriff is not liable to be called upon to return process unless within six lunar months after the expiration of his office; and the day on which he goes out of office is to be reckoned as part of the six months. He cites as authority the case just mentioned of Norris 1 See observations of the court, in Sims v. Hampton, 1 Serg. & Rawle (Penn.), R. 411; also of the court, in Windsor v. China, 4 Greenl. (Me.), R. 298; also of the Master of the Rolls, in Lester v. Garland, 15 Ves. Ch. R. 248; also of Washington, J., in Pearpoint v. Graham, 4 Wash. (Cir. Co.), R. 232. 2 Chitty on Bills; Story on Bills. 8 Hobart's R. 139; s. c. 1 Brownl. R. 156. The King v. Adderley, Doug. R. 463.. v. Hundred of Gautris and Bellasis v. Hester. The statute of 21 James I. c. 19, enacts, that a trader lying in prison two months, that is, two lunar months, after an arrest for debt, shall be adjudged a bankrupt; and it was held, that the day of the arrest was included. Lawrence, J., was of opinion, that it must be so included upon the authority of the King v. Adderley, where he said the rule was laid down generally, that where the computation of time is to be made from an act done, the day on which such an act is done, is to be included. In a case where the law required that a month's notice be given of an action, it was held, that the month begins with the day on which notice is served; the court saying that the case came expressly within the rule laid down in the King v. Adderley.3 § 45. In accordance with the foregoing decisions, and upon the authority of some of them, it was held by the Supreme Court of Massachusetts, that the day on which a payment was made on a note was to be included in the calculation of time, under a plea of the statute of limitations to an action on the note. The note was dated February 16, 1810, payable on demand, and the action was commenced on the 1st of November, 1817. A payment was made and indorsed on the note, on the 1st of November, 1811, so that the time of limitation would begin to run from that time. The question, therefore, was whether a promise made on the 1st of November, 1811, and sued on the 1st of November, 1817, was barred as not having been brought within six years. The court decided it was, and Mr. Justice Jackson, who delivered the opinion of the court, said: "By the statute of limitations it was intended that the plaintiff should have six full years and no more, within which to bring his action. In this case he might have brought his action on the 1st of November, 1811, as upon the new promise then made (supposing that the action had been previously barred by the statute); and if he may also commence on the first day of November, 1817, it would make seven first days of November, in the six prescribed by the statute." He cited as authority, Norris v. The Hundred of Gautris, and Doug. 463, The 1 Bellasis v. Hester, 1 Lord Raym. R. 280. 2 Glassington v. Rawlins, 3 East, R. 407. 3 Castle v. Burditt, 3 D. & East, R. 623. Presbrey v. Williams, 15 Mass. R. 193. See also, Little v. Blunt, 9 Pick. (Mass.), R. 488. |