events, by the law of England and of this country, or quasi possession, as the case may be, is primâ facie evidence of property, and of a seisin in fee. The longer the continuance of the possession, and the absence of the disturbance of it, the greater is the length to which courts of justice will go in supporting the conclusion that there was a legal origin for it; and, in order to render the title of the possessor complete, they will presume collateral facts, as livery of seisin, execution of deeds, &c., agreeably to the maxim, Ex diuturnitate temporis omnia præsumuntur solemniter esse acta.1

§ 5. Legislators, as well as courts, have acted upon such presumptions, and, in the exercise of their peculiar and transcendent functions, have made them positive evidence. The statute of possession of the Island of Jamaica is in the nature of the usu capio of the Romans, inasmuch as it converts a possession of seven years into an absolute title. So, also, is the modern English statute, of 3 & 4 William IV. c. 27,3 the thirty-fourth section of which provides, that, at the determination of the period limited to any person for making an entry or commencing an action, the title to the land shall be extinguished. So, also, is the statute of possession of the State of Rhode Island, which provides, that a quiet possession of twenty years of any lands, tenements, or hereditaments, shall, of itself, make a good and rightful title in fee-simple. No English statute of limita

tions had this effect before the above statute of William IV.

upon land, by the statute of limitations of 21 James I., a right to an incorporeal hereditament may be acquired by an adverse uninterrupted enjoyment for twenty years; and the modern Reports, in England and in the United States, abound with decisions to this effect. This doctrine of establishing a prescription, by virtue of twenty years' enjoyment, is now regulated, and made more consistent with previously-settled doctrines, in England, by the statute 2 & 3 William IV. c. 21, entitled "An act for shortening the time of prescription in certain cases."

1 Best on Presumptions of Law and Fact, 87; Mathew on Pre. Ev.; Greenl. on Ev. [But no length of possession of land will in law amount to a presumption of title. It is only a fact to go to the jury with other facts to enable them to determine whether a conveyance has actually taken place. Callender v. Sherman, 5 Ired. (N. C.), 711. And even where disabilities, such as coverture or minority, except the case from the operation of the statute, undisturbed possession for thirty or forty years, and the acquiescence of the husband or guardian, is evidence entitled to weight in support of the purchaser's title. Meanor v. Hamilton, 27 Penn. St. R. 137.]

2 Beckford v. Wade, 17 Ves. R. 88.

2 Appendix, p. vi.

* Appendix, p. xvii.

§ 6. Analogous to the doctrine of prescription, and to the foregoing presumptions of law and the exercise of legislative authority founded upon them, is the ancient doctrine of fines, which, in point of antiquity, is not exceeded by the earliest English judicial record.1 Fines and recoveries were regulated by the statute of 4 Hen. VII., and the effect of them was to put a final end to all controversies and suits, which it did after five years.2 The statute of New York allowed five years to claim against a fine, and expressly affirmed the common law, in declaring that a fine levied pursuant to the forms regulated by the statute "shall be a final end, and conclude, as well privies as strangers, to the same," excepting persons under disabilities, &c. It operates not merely as a shield to a person in possession under a doubtful title, but as an absolute conveyance, or investment of title, per se, after five years acquiescence.3

§ 7. Secondly: Prescription may extend to remedies only, and be rather the means of exemption from the servitude of an action, than of the acquisition of a positive and absolute title. Where several remedies, therefore, exist in a particular case, a person may be exonerated from one, and still be liable to another. The statute 21 James I. applies only to the remedy. Therefore, if a party has, by this statute, lost his remedy by ejectment, he may afterwards have recourse to a remedy of a higher nature, as a writ of right. So, if he is barred of his real action by the statute of 32 Hen. VIII., he may avail himself of a right of entry, which subsequently accrues to him, and maintain an ejectment, if brought within twenty years thereafter, which is the time limited by the before-mentioned statute of James.* On the same principle, what the French denominate fins de non recevoir by prescription, is not considered to extinguish the claim entirely, but only to render it inefficacious, by prohibiting the creditor the enforcing of it. And the limitation of actions for the recovery of

1 Instances of them have been produced prior to the Norman invasion. Plowd. 369. 2 Cruise on Fines, 1 Ed. IV. 89, 93; Inman v. Barnes, 2 Gallison (Cir. Co.), R. 313. 8 Per Platt, J., in giving opinion of the Court in Jackson v. Smith, 13 Johns. (N. Y.), R. 426. Among the reforms in the English law, brought about by the instrumentality of Lord Brougham, is the abolition of fines and recoveries.

The action of assumpsit may not be barred, when to an action for a tort, as trover, the cause of action being the same, the statute of limitations may be pleaded. See post, § 72.

5 Evans's Pothier, 402; Code Nap. 618.

money is not generally intended to destroy a just debt, its object being merely to guard against suspicious and ill-founded claims, which have not been pursued before the prescribed time has elapsed; and the right being reserved of showing by a clear and positive admission of the debtor, that the claim is still subsisting, and is still justly due. Therefore, if a debt should be discharged by payment, when the debtor might have availed himself of the statute of limitations, the payment cannot be recalled; for it is such a recognition of the debt, as will repel any imputation that the transaction was nudum pactum.2

§ 8. Prescription has existed in some form, and under some name, as a part of the municipal law of every civilized nation, with the exception of the Jewish. The Jewish law enjoined, that all lands not in the possession of the true owner, should be returned to him at the jubilee. The law of Athens, on the other hand, contained a general prohibition of all actions, where the injury had been committed six years before the complaint was instituted. And by the Twelve Tables of Rome, the substance of whose provisions are reputed to have been extracted by the Roman Decemviri from Grecian legislation, the remedies to recover possession of land were limited to the short period of two years. In the more advanced stages of the law of the Roman empire, and after it became entitled to the high appellation of "saluberrima lex," we find an usu-capio longi temporis præscriptio, and a præscriptio longissimi temporis. The former, which related to movables, was confined to three years. The latter, which was confined to immovables, was limited to ten years inter presentes, or if the parties were present, and to twenty years, inter absentes, or if the parties were absent. And through all the modifications which this celebrated law has from time to time received, and in all the varied forms in which it has been administered to the modern nations of

wninshield, 2 Mason's (Cir. Co.) Rep. 170. [By the law of France, learly that he paid the debt under a mistake as to the fact of his may recor back. Dalloz. Dict. de Jur. Tit. Prescription

aw, 165. By the Hindoo law, no process ich are reckoned sixty years, to recover al Sanscrit, by Colebrook, vol. 3, p. 443. Civil Law, 322.

continental Europe, some term of time has invariably been observed, as the ne plus ultra beyond which a possession cannot be disturbed, and at the end of which, a party shall, in all cases, be completely exonerated from all judicial interpellation.1 The same may be said in relation to Scotland, in which country the civil law has been the model of imitation in respect to the most important subjects, and to a great extent. In the year 1469, the government of Scotland established a negative prescription for simple obligations, which became considerably extended by practice, until finally, by the act of 1617, heritable bonds and other heritable rights were included. Demands by book account were subject by the act of 1579 to the limitation of three years, but the limitation of bills and notes was fixed in Scotland not until the 12 Geo. III. to six years.3

$9. One of the considerations upon which the doctrine of prescription is founded is public policy. The spirit of the maxim, Interest Reipublicæ ut sit finis litium, may be traced to a more remote period than the Christian era. The language of the civilians and of the commentators upon the common law has been, that the dominion of things must not for a long time remain uncertain, so as to disturb the peace of society by giving rise to innumerable and perpetual litigations; and that, to prevent such serious evil, the indolence of those who are dilatory in recovering their property, and claiming what is due them, should be punished, and that those who are indolent shall impute to themselves the punishment. Although, says Domat, there was no other reason to justify the introduction and use of prescription than that of public policy, it would be just to prevent the property of things from being constantly in a state of uncertainty.5 Judges of courts, both in England and in the United States, have, in very many instances, emphatically characterized statutes of limitation as statutes of repose; though it must be admitted, that in too many instances, in both countries, by the astuteness of lawyers, and the too inconsiderate construction of courts, they have been in danger of

1 Gro. L. 2, c. 4, p. 86; Heinecc. p. 6, § 208; Fred. Code, T. 5, Art. 2; Domat's Civil Law, L. 3, T. 7; Code Nap. Lond. Ed. p. 613; Evans's Pothier, c. 8, Art. 1. 2 Bell's Law Scot. 637, 8, 9.

8 Ibid. 750.

4 See Spanish Law of Prescription, in Lapia's edition of Don Josef Febrero de Escribanos, as translated in 10 American Jurist, 268.

5 Domat's Civil Law, L. 8, T. 7, § 4.

becoming statutes of controversy.1 Cause of complaint from this source, as the following pages will illustrate, need no longer, to much extent, be apprehended. With respect to land, it may be mentioned, that there is one other public consideration in support of the doctrine of prescription, which is, that during the litigation and investigation of a doubtful title to it, it must become waste and unproductive for the want of improvement and tillage.2 Consequently no legislative action has been more universally sanctioned by the practice of nations and states, and popular approbation, than that exerted for quieting a long, undisputed possession of the soil. The observation, so often advanced as to have become a proverb, that the interests of society require that causes of action should not be deferred an unreasonable time, is peculiarly applicable to land titles in our own country. Nothing, say the Supreme Court of the United States, so much retards the growth or prosperity of a country, as insecurity of titles to real estate; and labor is paralyzed when the enjoyment of its fruits is uncertain.3 The great public interests are therefore properly respected, and essentially protected by a strict observance of the long-established maxim vigilantibus non dormientibus inservit lex.

§ 10. But whatever opinions may have been entertained and advanced to the contrary, it is beyond doubt, that prescription, while it conduces, in the manner just mentioned, to the interests of society in general, it at the same time does so as the means of ensuring private justice. In a controversy respecting property, the party claiming may, it is true, by length of time, be barred of his remedy to recover it, and the present occupant be regarded as the lawful proprietor. In such a case, however, it is not intended that a title shall be created merely by virtue of possession; but the design is only to exclude all objections to a title which is prima facie good, and which, for a long period of time, in the belief of the possessor, has so remained, without having been the subject of any claim or controversy. And the lapse of time is regarded not only as a dereliction of all grounds of objection, but as a protection against the ingenious attempts to frustrate an unexceptionable title, by the intromission of claims, the injus

1 See the observations of Mr. Brougham, on the Reform of the Law, in his speech in the House of Commons, February 7, 1828.

2 See Opinion of the court in Hoveden v. Lord Annesley, 2 Sch. & Lefr. R. 629.

3 Lewis v. Marshall, 5 Peters (U. S.), R. 470; Hawkins v. Barney's Lessee, id. 457.