SEC. 1. What are. Statutes of limitation are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims, or within which certain rights may be enforced ; and those statutes which merely restrict a statutory or other right do not come under this head, but rather are in the nature of conditions put by the law upon the right given. Thus, a statute that prescribes the term of court at which an indorsee of a note is required to sue the maker in order to hold the indorser liable,1 or the time within which 1 McDaniel v. Dougherty, 42 Ala. 506; Davidson v. Petticolas, 34 Tex. 27. "Statutes of limitations," says the court in Elder v. Bradley, 2 Sneed (Tenn.), 247, "are rigorous rules the enactment of which public policy demanded." They differ essentially from the civil-law doctrine of prescription, as they act simply upon and defeat the remedy; while the latter defeat the right itself. Billings v. Hall, 7 Cal. 1. But instances often arise where these statutes not only defeat the remedy for the recovery of personal property, but also act upon the title, and defeat the rights of the party against whom it has run, so as to divest him of the title thereto in any jurisdiction. Sims v. Canfield, 2 Ala. 555; Fears v. Sykes, 35 Miss. 633; Newcombe v. Leavitt, 22 Ala. 631; Winburn v. Cochran, 9 Tex. 123. 8 writs of error shall be brought,1 or a statute which fixes the time within which lands sold on execution may be redeemed,2 or within which a judgment or other lien shall be enforced, or which merely postpones a claim unless enforced within a certain time, or which provides that a certain class of evidence shall be admissible if action is brought within a certain time,5 - are not statutes of limitation within the legal sense of the term, and consequently are not affected by any act suspending, extending, or repealing such statutes. But statutes which provide that no action shall be brought, or right enforced, unless brought or enforced within a certain time, are statutes of limitations, although they merely act upon the remedy, and do not extinguish the claim. In other words, statutes which destroy a remedy or a right unless enforced within a certain specified period are statutes of limitation, and those which merely suspend a remedy or right unless enforced within a certain time are not statutes of limitation in any sense. SEC. 2. History and Origin of.—The law relating to the limitation of actions, so far as questions of title or contract are concerned, is merely the creation of statute. At the common law there was no limit to the time within which an action might be brought, except in the single instance of a fine, with proclamations. But in the case of torts the 1 Pace v. Hollaran, 31 Tex. 358; Trim v. McPherson, 7 Coldw. (Tenn.) 15. In Georgia, it is provided by § 3525 of the Revised Code that, when any person has bona fide and for a valuable consideration purchased real or personal property, and has been in possession of such real property for four years and of such personal property for two years, the same shall be discharged from the lien of any judgment against the person from whom he purchased; and this is held not a statute of limitations, but rather a condition put by law upon the lien of the judgment, like the duty of recording a mortgage, and consequently that it does not come within the purview of a statute suspending temporarily all statutes of limitation. And in Tennessee a similar doctrine was held in reference to a statute which allows a party to whom land has been sold on execution to redeem the same within two years. Reynolds v. Baker, 6 Coldw. (Tenn.) 221. So, also, in Texas, a statute providing that a creditor of a deceased person must present his claim against the estate within twelve months, or it will be postponed until all the claims which were presented within that time have been fully paid, was held not a statute of limitations, but rather 6 Horton v. Clark, 40 Ga. 412; McMillar v. Werner, 35 Tex. 419. 7 In the instance of a fine with procla mations, the time within which a stranger might make a claim was limited to a year and a day thereafter, and by Stat. 32 Hen. VIII. c. 2, this was enlarged to five years. Co. Litt. 26 a. As to the statement that this was the only limitation at common law, see Blanshard, 4. The statement of BRACTON to the contrary, omnes actiones in mundo infra certa tempora habent limitationem," Lib. 2, fol. 52, is extremely doubtful. As one author expresses it, "as doubtful as the Latinity." Banning on Limitations, 1. LORD COKE says that the limitation of actions was by force of various statutes. Co. Litt. 115; maxim, "actio personalis moritur cum persona," applied, and therefore were only limited by the duration of the life of either party. The want of a limitation was supplied, in a measure, by a doubtful doctrine of presumption,1 and also by the trial by wager of law, which is believed 2 Int. 95; 4 Coke, 10; 5 Bacon's Abr. 461; Spelm's Glossary, 32. And such seems to be the generally accepted idea both of textwriters, Banning on Limitations, 1-8, and the courts, Wall v. Robson, 2 N. & McCord (S. C.), 499; People v. Gilbert, 18 Johns. (N. Y.) 227; Wilcox v. Finch, 20 id. 475). The lapse of time, as twenty years, without the institution of legal proceedings for the recovery of a debt, was held to afford a strong prima facie presumption of payment, or that the cause of action had been satisfied. Bracton, lib. 2, fol. 282, says: "Omnis querela et actio injuriarum limitata est infra certa tempora." And also see 2 Inst. 95. As, how ever, no precise time was fixed at the common law when a claim should be regarded as absolutely extinguished, it was found necessary for the protection of trade and commerce, as well as of the rights of parties generally, to fix such period by statute. These statutes affect only the remedy. They go "ad litis ordinationem," and not "ad litis decisionem," in a just judicial sense. Their object is to fix a certain period within which action may be brought, whether by citizens or foreigners, and thus enable debtors to enjoy a repose from stale demands. They are now generally regarded with favor, and as being in the interest of justice, and for the prevention of fraud, by compelling parties to bring their actions before the proofs for or against their claims are lost. Story on Conflict of Laws, sec. 576. 1 At the common law a presumption was raised from the non-payment of a debt for twenty years, that it had been paid, throwing the burden of establishing nonpayment upon the party seeking to enforce it; and this presumption still exists, notwithstanding the statutes of limitations. Carr v. Dings, 54 Mo. 95. LORD ELLENBOROUGH, in Williams v. Jones, 13 East, 419. The right of action descended to the plaintiff's representative, against the representative of the defendant, for an unlimited time. Banning on Limitations, 10. But in actions for torts, the rule actio personalis moritur cum persona prevailed; and on the death of either party, not only an action, but all right of action, died with the person; and such is now the rule, except in so far as the right is saved by statute. To remedy this evil (for it really was so), the statute of 21 James I. c. 16, was passed, limiting the time within which actions arising out of contracts, and a certain class of torts, should be brought. The third section of this act is as follows: "All actions of quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin for taking away of goods and cattle, all actions of account, and upon the case other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants; all actions of debt grounded upon any lending or contract without specialty; all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, or imprisonment, or any of them, which shall be sued or brought at any time after the end of this present session of Parliament, shall be commenced and sued within the time and limitation hereafter expressed, and not after; (that is to say), the said actions upon the case (other than for slander), and the said actions for trespass, debt, detinue, and replevin for goods or cattle and the said action of trespass, quare clausum fregit, within three years next after the end of this present session of Parliament, or within six years next after the cause of such actions or suits and not after; and the said actions of trespass, assault, battery or wounding, imprisonment, or any of them, within one year next after the end of this present session of Parliament, or within four years next after the cause of such actions and not after; and the said actions upon the case for words, within one year next after the end of this present session of Parliament, or within two years next after the words spoken and not after." Secs. 4 and 7 of the act are to have operated as a check on stale demands.1 When the abuses from stale demands became so great as to be unendurable, the legislature did not at first fix any certain and progressive period within which actions should be commenced, but from time to time chose for that purpose certain notable times; and in this way, by virtue of various statutes, the beginning of the reign of King Henry the First, the return of King John from Ireland, the journey of Henry the Third into Normandy, and the coronation of King Richard the First, were successively chosen, that suits and actions, the cause of which arose previous to their respective dates, should be barred. The early statutes had reference to realty alone, and, though productive of immediate relief, the advantage was only temporary, and in the reign of Henry the as follows: "4. And nevertheless, be it enacted, That if in any the said actions or suits judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill, or if any the said actions shall be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after. 7. Provided nevertheless, and be it further enacted, That if any person or persons that is, or shall be entitled to any such action of trespass, detinue, action sur trover, replevin, actions of account, actions of debt, actions of trespass, for assault, menace, battery, wound. ing or imprisonment, actions upon the case for words be, or shall be, at the time of any such cause of action, given or accrued, fallen or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be at liberty to bring the same actions so as they take the same within such times as are before limited after their coming to, or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such impediment should have done." It case. will be observed that there is no direct mention in this act of the action of assumpsit, which is the most important of all the actions; but it was held to embrace this action, as being fairly within the reason of the act, if not fairly considered to be embraced in the action of trespass on the Bacon's Abr. Limitations, E 1; Harris v. Saunders, 4 B. & C. 411; Piggott v. Rush, 4 Ad. & El. 912; Inglis v. Haigh, 8 M. & W. 769. This statute did not embrace specialties, or contracts under seal, judgments, or other matters of record properly coming under that head; but these were provided for by a later statute, 3 & 4 Wm. IV. c. 27, which made it necessary to bring an action for such debts within twenty years. 1 By this method a defendant was allowed to clear himself by his own oath and that of eleven compurgators. In the Code Napoleon, Civil, 2275, something analogous to the wager of law is preserved, but the purpose is opposite, viz. to prevent abuse from the law of limitations. Wager at law only applied to an action of debt on a simple contract, and of detinue. The action of assumpsit did not come into general use until after Slade's Case, 7 Mod. 112, in the year 1603, and as through it wager at law was avoided, it took the place of actions of debt on simple contracts, as the action of trover took the place of detinue. Wilkinson on Limitations; 3 Blackstone's Com. 341; 2 Bouv. Law Dic. (Wager of Law). 2 Hale's Common Law, 152; Co. Litt. 114 b, 115 a. |