pleadings previously to the hearing, and that it will not be raised by the court unsolicited; and, also, that the protection afforded by the 1 party asserting a different title. Sicard v. Davis, 6 Pet. (U. S.) 124. In an early English case it was held that the statute was an absolute bar to a claim upon which it had run, and consequently that it operated as a bar to an action by its own force, and without being pleaded. Brown v. Hancock, Cro. Car. 115. But the question coming before the court soon afterwards, the judges were equally divided on the question. Frankersley v. Robinson, id. 163. And still later it became well settled that a person could not avail himself of the statute unless he set it up by plea. Puckel v. Moore, Vent. 191; Gould v. Johnson, 2 Ld. Raym. 838; Kirkman v. Siboni, 4 M. & W. 339; Brickett v. Davis, 21 Pick. (Mass.) 404; Robbins v. Harvey, 5 Conn. 335; Pegram v. Staltz, 67 N. C. 144; Pearsall v. Dwight, 2 Mass. 87; Chambers v. Chambers, 4 G. & J. (Md.) 349; Parker v. Irwin, 47 Ga. 405; Merryman v. State, 5 H. & J. (Md.) 425; Jackson v. Varick, 2 Wend. (N. Y.) 294. And even in those States where it is held that a person may avail himself of the statute by demurrer, it is held that, unless the bar appears from the declaration, the statute must be pleaded. Davenport v. Short, 17 Minn. 24; Frosh v. Sweet, 2 Tex. 485; Sturges v. Burton, 8 Ohio St. 215; Lewis v. Alexander, 51 Tex. 578. That the statute must be pleaded, see Capen v. Woodrow, 51 Vt. 106; Hines v. Potts, 56 Miss. 346. But it has been held that in actions against the government, under a statute authorizing a claimant to sue it if his action was brought within six years from the time the right of action accrued, the courts were bound to take notice of the statute, and that the statute itself in such cases is in effect a plea of the statute of which the courts are bound to take notice. But in such cases it will be observed that the statute confers the right of action and subjects the right to a condition, viz. that suit shall be brought within a certain time; and, unless the condition is not complied with, the right does not exist. Kendall v. United States, 14 Ct. of Cl. (U. S.) 122. pleaded or interposed as a bar by answer, where such practice prevails, or by notice under the general issue; and the proper plea, where the statute is interposed to bar an action upon a simple contract, is non accrevit infra sex annos. Parker v. Kane, 4 Wis. 1; Peck v. Cheney, id. 249; Humphrey v. Persons, 23 Barb. (N. Y.) 313; Young v. Epperson, 14 Tex. 618; Tazewell v. Whittle, 13 Gratt. (Va.) 329; Havlin v. Stevenson, 30 Iowa, 371; Offut v. Henderson, 1 Cr. (U. S. C. C.) 553; The Swallow, Olc. (U. S.) 334; Neale v. Walker, 1 Cr. (U. S. C. C.) 57; McIver v. Moore, id. 90; Gardner v. Lindo, id. 78; Rivers v. Washington, 34 Tex. 267; Robbins v. Harvey, 5 Conn. 335; Pegram v. Stoltz, 67 N. C. 144; Wisecarver v. Kincaid, 83 Penn. St. 100; Parker v. Irvin, 47 Ga. 405; Robinson v. Allen, 37 Iowa, 27; Tarbox v. Adams County, 34 Wis. 558. In New York, under the code, the statute must be set up by way of answer. Sands v. St. John, 36 Barb. (N. Y.) 628; Bihrin v. Bihrin, 17 Abb. Pr. (N. Y.) 19; Cotton v. Manurer, 3 Hun (N. Y.), 552. And the plaintiff cannot avail himself of the statute against a counter-claim unless he replies the statute thereto. Clinton v. Eddy, 1 Lans. (N. Y.) 61. But he may interpose the statute against a set-off not the subject of counter-claim, although it is not specially pleaded. Mann v. Palmer, 2 Keyes (N. Y.), 177; Jacks v. Moore, 1 Yeates (Penn.), 391. In Kentucky, under the code, matters in avoidance of a plea of the statute need not be pleaded, but may be proved. Harris v. Moberly, 5 Bush (Ky.), 556. In all cases, unless otherwise provided by statute, the statute of limitations must be specially pleaded, or it is treated as waived. Bordens v. Murphy, 78 l. 81; Hitchcock v. Harrington, 6 Johns. (N. Y.) 290; Sears v. Shafer, 6 N. Y. 268; Fairchild's Case, 24 Wend. (N. Y.) 381; Boggs v. Bard, 2 Rawle (Penn.), 102; Heath v. Page, 48 Penn. St. 130; Gullick v. Loder, 2 N. J. Eq. 68. And when the statute is pleaded, the plaintiff must reply specially. Webster v. Newbold, 41 Penn. St. 482; Brand v. Longstreet, 4 1 To be available, the statute must be N. J. L. 325; Crosby v. Stone, 2 id. 988. statute may be waived by the debtor, the best possible proof of such waiver being a payment. It is probable, however, that this rule is applicable solely to cases where by the statute the remedy only, not the right, is destroyed.1 Not only must the statute be pleaded, but also, when it is set up in bar of the action, the plaintiff must reply thereto, and set up such matters as he relies upon in avoidance of its operation,2 and in such a manner as to apprise the defendant of the issue intended to be raised, whether of denial or avoidance; and the plaintiff will be precluded from giving any matter in evidence to avoid the statute, not specially embraced in his plea. Thus, under a replication that the defendant did assume and promise within six years, it has been held that the plaintiff could not show that the defendant had promised not to plead the statute.* So where a defendant, in his answer, instead of alleging that In Minnesota, the statute must be pleaded, unless the complaint on its face clearly shows that it has run. Davenport v. Short, 17 Minn. 24. In Arkansas, while under the Code, § 111, it is optional with a party, where the claim appears to be barred, upon the face of the declaration or complaint, to set up the statute either by demurrer or answer, yet if the complaint shows on its face that the claim is not barred when it in fact is, the defence can only be made by answer. McGehee v. Blackwell, 28 Ark. 27. In some of the States it is held that, where the plaintiff's pleadings show on their face that his demand is barred by statute, a demurrer showing the fact can be interposed. Hudson v. Wheeler, 34 Tex. 356. But the bar of the statute must appear affirmatively from the plaintiff's pleadings. Moulton v. Walsh, 30 Iowa, 361. And the statute can never be interposed by a general demurrer. Rivers v. Washington, ante. In Ohio, where the bar of the statute appears upon the face of the complaint, advantage of it may be taken by demurrer; but the demurrer is waived by a subsequent answer to the merits. Vose v. Woodford, 29 Ohio St. 245; Collins v. Mack, 31 Ark. 684. In North Carolina, advantage of the statute cannot be taken by demurrer, but must be set up in the answer. Green v. N. C. R. R. Co., 73 N. C. 524. 1 In Perkins v. Guy, 55 Miss. 153, it was held that the statute of the locus contractus could not be pleaded in bar in a foreign jurisdiction, where both parties were resident in the place where the con tract was made, during the whole statutory time, unless such statute goes to the extinction of the right itself, rather than to the extinction of the remedy. But that, where the right of action is extinguished by the statute of the locus contractus, effect will be given thereto by the lex fori. In Iowa, by statute, the statute of limitations of another State is a bar to an action upon the claim in that State. Davis v. Harper, 48 Iowa, 513. In Gans v. Frank, 36 Barb. (N. Y.) 320, a doctrine similar to that held in the Mississippi case, supra, was held. 2 Crosby v. Stone, 2 N. J. L. 988; Van Dike v. Van Dike, 4 N. J. Eq. 289; Jarvis v. Pike, 11 Abb. Pr. (N. Y.) N. s. 398; Ford v. Babcock, 2 Sandf. (N. Y. S. C.) 518; Witherup v. Hill, 9 S. & R. (Penn.) 11; Webster v. Newbold, 41 Penn. St. 482; McKelvey's Appeal, 72 id. 409. 8 Jarvis v. Pike, ante. The plea must be interposed before issue is joined, and this is the case even when a matter is referred. But if matters are brought up by the plaintiff, of which the defendant first had notice on the trial before a referee or auditor, to such matters the plea may then be interposed, either orally or in writing, by leave of the referee or auditor. When a defendant sets up a counter-claim, the plaintiff must plead the statute thereto, and cannot for the first time set it up before the referee, and the referee has no power to authorize the filing of such a plea. Ripley v. Corwin, 17 Hun (N. Y.), 597. McCulloch v. Norris, 5 Penn. St. 285. 66 the cause of action did not accrue within the prescribed period before the commencement of the action, alleged that he did not at any time within the prescribed period before the commencement of the action undertake, promise, or agree, &c., it was held insufficient to interpose the bar of the statute.1 And the same is true as to fraud, absence from the State, or indeed any matter that goes in avoidance of the statutory bar.2 SEC. 8. The Law of Limitations a Part of the Lex Fori. - It is a well-settled rule, that personal contracts are to be interpreted by the law of the place where they are made; and it is a rule equally well settled, that remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted, and not by the law of the place of the contract. The reason of this rule, according to STORY, J., is obvious. "Courts of law," says he, are instituted by every nation for its own convenience and benefit, and the nature of the remedies, and the time and manner of the proceedings, are regulated by its own views of justice and propriety, and fashioned by its own wants and customs. It is not obliged to depart from its own notions of judicial order from mere comity to any foreign nation. As a rule, statutes of limitation are to be considered to fall within these remarks. They go ad litis ordinationem, not ad litis decisionem. In cases, therefore (except where provision is otherwise made by statute), where an action is brought in one country or State upon a contract made in another, a plea of the statute of limitations existing in the place of contracts is not a good bar, but a plea of the statute existing in the country or State where the action is brought, is." This rule is in conformity with the universal a bill in equity for discovery of assets and satisfaction of the plaintiff's debt, which was a judgment obtained in France, was brought. The defendant set up the English statute of limitations in bar of the claim, which was allowed by the Lord Keeper, and this decree was confirmed on a rehearing. The question was made at law, and LORD ELLENBOROUGH said: "It is said that parties who have contracted abroad return to this country with the same rights which they had in the country where they so contracted; and, generally speaking, that is so, — that is, if the rights of the contracting parties be extinguished by the foreign law, by the happening of certain events. But here there is only an extinction of the remedy in the foreign court, according to the law stated to be received there, but no extinction of the right; and there is no law or authority that where there is an extinction of the remedy only in the foreign court, that shall operate, by comity, as an extinction of the remedy here also. If it goes to the extinction of the right itself, the case may be different." Campbell v. Stein, 8 Dowl's Par. 116. The uniform administration of the law has been that the lex loci contractus expounds the obligations of contracts, and a statute of limitations prescribing a time after which a plaintiff shall not recover, unless he can bring himself within its exceptions, appertains ad tempus et modum actionis institudendæ, and not ad valorem contractus. Townsend v. Jameson, 9 How. (U. S.) 407; United States v. Donelly, 8 Pet. (U. S.) 361. In Dash v. Tup rule that, as the statute operates merely upon the remedy, the law of the forum, and not the law of the situs of the contract, controls. But, per, 1 Cai. (N. Y.) 402, in an action upon a note, the statute of limitations of New York was pleaded, and the plaintiff replied that the note was made in Connecticut, where the statute was seventeen years, whereas in New York it was only six years. The court held this replication bad on demurrer. In Scotland it has been held that, as to process brought there to recover an English debt, the statute of prescription in England cannot be pleaded, but that it may be pleaded to infer a presumption of payment; and the plaintiff will be permitted by positive evidence to overcome this presumption by contrary presumptions, or to show from the circumstances of the case that payment cannot be presumed. Kame's Principles of Equity, c. 8, p. 369. But this doctrine does not prevail in this country. WAYNE, J., in Townsend v. Jameson, 9 How. (U. S.) 407, in a very able and exhaustive opinion, says: "Most of the civilians, however, did not lose sight of the difference between these prescriptions, and if their reasons for doing so had been taken as a guide, instead of some expressions used by them as to what may be presumed as to the extinction or payment of a claim, while the plea in bar is pending, we do not think that any doubt would have been expressed concerning the correctness of their other conclusion, that statutes of limitations in suits upon contracts only relate to the remedy. But that was not done; and from some expressions of POTHIER and LORD KAMES, it was said, 'If the statute of limitations does create, proprio vigore, a presumption of the extinction or payment of the debt, which all nations ought to regard, it is not easy to see why the presumption of such payment, thus arising from the lex loci contractus, should not be as conclusive to every other place as in the place of the contract.' ... But neither POTHIER nor LORD KAMES meant to be understood that the theory of statutes of limitations purported to afford positive presumptions of payment and extinction of contracts, according to the laws of the place where they are made," but only that the presumption is in favor of the party pleading the statute. Bigelow v. Ames, 18 Minn. 537. In Miller v. Brenhaur, 7 Hun (N. Y.), 330, in an action upon a foreign judgment, it was held that the statute of the State in which the judg ment was rendered could not be set up to defeat the action in New York, as the stat ute is local. Hubbell v. Cowdrey, 5 Johns. (N. Y.)132; Bissell v. Hall, 11 id. 168; Ruggles v. Keeler, 3 id. 264; Carpenter v. Wells, 21 Barb. (N. Y.) 593 ; Power v. Hathaway, 43 id. 214; Toulandau v. Lachmeyer, 7 How. Pr. (N. Y.) 145. In Loveland v. Davidson, 3 Penn. L. J. 377, an action was brought in Pennsylvania upon a judgment obtained before a justice of the peace in New York, which was barred by the statute of limitations of that State. Held, that it was not a bar to an action thereon in Pennsylvania. Murray v. Fisher, 5 Lans. (N. Y.) 98. Pet. (U.S.) 1 McCluny v. Silliman, 270; Townsend v. Jennison, 9 How. (U. S.) 407; Thibodeau v. Levasser, 36 Me. 362; Le Roy v. Crowningshield, 2 Mas. (U. S.) 151; Jones v. Hays, 4 McLean (U. S.), 521; McElmoyle v. Cohen, 13 Pet. (U.S.) 312; Nicolls v. Rodgers, 2 Paine (U. S.), 437; Egberts v. Dibble, 3 McLean (U. S.), 86; Miller v. Brenham, 68 N. Y. 83; Mayer v. Freedman, 7 Hun (N. Y.), 218. In Loveland v. Davidson, 3 Penn. L. J. Rep. 377, in an action on a judgment obtained before a justice in New York, the defendant set up the New York statute of limitations in defence. The court held that the plea was bad, and that the lex fori, and not the lex contractus, governed. And even in those States where by statute the statute of another State may be set up to bar the action, the right to rely on the defence must be affirmatively shown by the answer. Gillett v. Hall, 32 Iowa, 226. This question was raised in Miller v. Brenham, 7 Hun (N. Y.), 330. In this case an action was brought against the defendant upon a judgment obtained against him in California. It was contended that the action was too late, because by the statute of California an action upon any judgment of the courts of the United States, or of any State and Territory, was required to be commenced ⚫ within five years from its rendition, where if the statute extinguishes the right itself, it may be set up as a bar to an action thereon wherever brought. This rule is forcibly illustrated in another way, and that is, that where by the laws of the forum a shorter period for the limitation of a claim is fixed than by the law of the situs of the contract, the statute of the forum will bar the claim if the party setting it up brings himself within it, although the statute of the place of contract has not run. Thus, in Massachusetts, a witnessed note is not barred until the lapse of twenty years; but in New York no distinction is made between a witnessed note and any other; and in an action in the latter State upon a witnessed note made in Massachusetts and payable there, it was held that the statute of New York run upon it in six years.2 There is a distinction as suggested by STORY, J., in his Conflict of Laws, and as suggested in reference to the preceding rule, in cases where the right as well as the remedy of the claimant is barred by the law existing at the place of contract. This, however, is not perhaps a fre as nearly eight years had elapsed since the judgment in action was obtained. Under this statute, if the action was not brought within five years, the judgment was neither discharged nor extinguished, but the party was simply deprived of his remedy. The court, in denying this defence, said: "The statute did not affect the remedy in any other respect, and consequently it cannot be allowed to control the proceedings in this State, brought for the collection of the judgment. The effect of statutes relating alone to the remedy is necessarily local, and this is a provision of that description. In this State an action upon the judgment could only be barred by showing that the defendant had resided here for the length of time required for that purpose by the terms of our statute." Hendricks v. Comstock, 12 Ind. 238; Watson v. Brewster, 1 Penn. St. 381; Paine v. Drew, 44 N. H. 306; Hubbell v. Cowdrey, 5 Johns. (N. Y.) 132; Bissell v. Hall, 11 id. 168; Ruggles v. Keeler, 3 id. 264; Carpenter v. Wells, 21 Barb. (N. Y.) 293; Power v. Hathaway, 43 id. 214; Toulandau v. Lachmeyer, 37 How. Pr. (N. Y.) 145. In Putnam v. Dike, 13 Gray (Mass.), 535, the court held that, although the debt arose forty years before action was brought thereon, it was not barred without proof that the defendant has ever been in the State; and in Lawrence v. Bassett, 5 Allen (Mass.), 140, it was held that a note is not barred by the statute although overdue for more than six years, although the maker was once a resident of the State, but has lived out of it ever since the action accrued. Walworth v. Routh, 14 La. An. 205; Garraway v. Hopkins, 1 Head (Tenn.), 583; Putnam v. Dike, 13 Gray (Mass.), 535; Bulger v. Roche, 11 Pick. (Mass.) 36; Flowers v. Foreman, 23 How. (U. S.) 132; Carson v. Hunter, 46 Mo. 467. But 1 Gans v. Frank, 36 Barb. (N.Y.) 320; Perkins v. Guy, 55 Miss. 153. The rule may be said to lead to these results: the statute of the country in which suit is brought may be pleaded to bar a recovery on a contract made out of its jurisdiction, but the statute of the State where the contract was made cannot be pleaded. when the statute of the place where the contract was made operates to extinguish the contract or debt itself, and the contract is sued upon in another State, the statute of the lex loci contractus, and not of the lex fori, controls. McMerty v. Morrison, 62 Mo. 140; McArthur v. Goddin, 12 Bush (Ky.), 274; Jones v. Jones, 18 Ala. 248; Cobb v. Thompson, 1 A. K. Mar. (Ky.) 507; Harper v. Hampton, 1 H. & J. (Md.) 622; Fletcher v. Spaulding, 9 Minn. 64. 437. 2 Nicolls v. Rodgers, 2 Paine (U. S.), 3 Carpenter v. Minturn, 6 Lans. (N. Y.) 56; Gans v. Frank, 36 Barb. (N. Y.) 320; Perkins v. Guy, 55 Miss. 155. In McMerty v. Morrison, 62 Mo. 140, the court |