bond or other specialty, what the courts of law did with respect to a defence founded on a lapse of time was, that after twenty years the judge would direct the jury to presume payment.1 Of course that presumption, like any other, was capable of being rebutted by evidence, and the court held that evidence of an acknowledgment would be sufficient to rebut the presumption.2 In fact, it was impossible for a debtor against whom an action was brought to ask the court to pronounce that the debt had been paid, when he had himself acknowledged the existence of the debt. It appears, therefore, to be a correct statement that, in the case of a specialty debt, the court could receive in evidence any acknowledgment of the alleged debtor in any shape, even when that acknowledgment was made to a third person, and that it was not necessary that such acknowledgment should amount to a new cause of action." 8 and sue afterwards on a subsequent forfeiture, and assign that for a breach.' 'For these reasons we are of opinion that the plaintiff is entitled to judgment on the second breach." Tuckey v. Hawkins, 4 C. B. 655; Bealy v. Greenslade, 2 C. & J. 61; Hollis v. Palmer, 2 New Ca. 713, and Savile v. Jackson, 13 Price, 715. 1 In Jackson v. Pierce, 10 Johns. (N.Y.) 414, where a mortgage had lain dormant from April, 1774, to March, 1802, it was held that, after deducting the period of the American Revolution, the lapse of time was sufficient to afford the presumption of payment. The presumption becomes absolute after the lapse of the period fixed by statute for prescription in analogous cases. If there is no entry or payment of interest, and being a presumption of law, it is in itself conclusive, unless encountered by distinct proof. Whitney v. French, 25 Vt. 663. In Ware v. Bennett, 18 Tex. 794, a neglect to foreclose a mortgage for four years after it falls due was held not conclusive ground for assuming, in favor of purchasers of the mortgagor's interest, that the mortgage had been paid. See also Appleton v. Edson, 8 Vt. 241. 2 But this presumption is effectually repelled by a payment of interest within the statutory period before action brought, Hughes v. Blackwell, 6 Jones (N. C.) Eq. 73; and the admissions of a mortgagor that the mortgage debt is due are evidence to rebut the presumption of payment, especially where it does not appear that the true tenant had an interest before the admissions were made, Frean v. Drinker, 8 Penn. St. 520. The presumption of payment, so far as mortgages are concerned, does not apply so long as the possession of the mortgaged premises is in the mortgagee. Croaker v. Jewell, 31 Me. 306. 8 In New Hampshire, in Howard v. Hildreth, 18 N. H. 105, it was held that when a mortgagor has retained possession of mortgaged premises for more than twenty years after the execution of the mortgage, but has acknowledged the debt and paid interest upon it within twenty years there is no presumption that the debt is discharged; and the same has also been held in South Carolina. Wright v. Eaves, 10 Rich. (S. C.) Eq. 582. But in Gould v. White, 26 N. H. 178, it was held that unexplained possession of the mortgaged premises for more than twenty years, may be left to the jury in connection with proof of partial payments and other evidence, as tending to show that the mortgage debt was fully paid. A presumption of payment is not like an actual payment which satisfies the debt as to all the debtors; it operates as a payment only in favor of the party entitled to the benefit of the presumption; and, in case of the lapse of over twenty years from the time when a bond secured by mortgage becomes due, the presumption of payment of the mortgage will not, as to the purchaser and those claiming under him, be repelled by proof of a payment made by the mortgagor after he had conveyed the premises to another person. New York, &c. Ins. Co. v. Covert, 29 Barb. (N. Y.) 435. Where specialties are brought within the statute, and no provision is made for keeping them on foot by an acknowledgment, an acknowledgment can have no effect in suspending the operation of the statute, because the action thereon is not founded upon a promise, but upon an obligation of a higher nature, and in order to keep it on foot the recognition of its validity and continuance must be of as high a character as the instrument creating the obligation. Payments, however, as will be seen, post,1 may have this effect. 1 Chap. XVII., MORTGAGES. SEC. 177. Time runs from Date of. In the case of torts arising quasi e contractu, the statute usually commences to run from the date of the tort, not from the occurrence of actual damage. And ignorance of the facts on the part of the plaintiff will make no exception to the rule, though he discovers his injury too late to have a remedy. This will be the case, too, even where the defendant has betrayed the plaintiff into permitting the time to elapse in fruitless inquiries and negotiations. There may be cases where the injured party may bring trespass or trover, or may waive both, and bring assumpsit for the proceeds of the property when it has been converted into money, and in the last case the tortfeasor cannot allege his own wrong so as to bring time back to the day of the tort. And where a party has his election between trover and assumpsit, the fact that one remedy is barred will not defeat the other if the statute has not run upon that. Thus, where the maker of a note which was outlawed asked the holder to see it, and upon its being shown, destroyed it, it was held that trover lay for the note, and that the measure of damages was the face of the note with interest, notwithstanding the fact that the statute might have been successfully interposed against an action upon the note itself.* The ground upon which this ruling rests is, that it cannot be presumed that, in an action upon a note or other obligation, so unlawfully destroyed by the maker, he would, although entitled to do so, have set up the statute to defeat it. "The only question of law in the case," 1 East India Co. v. Paul, 7 Moo. P. C. C. 85. See as to directors of insolvent bank, Hinsdale v. Larned, 16 Mass. 68. 2 Lamb v. Clark, 5 Pick. (Mass.) 193. But there must be an actual conversion. Jones v. Hoar, id. 285. See Lamine v. Dorrell, 2 Ld. Raym. 1216; Hitchin v. 3 Ivery v. Owens, 28 Ala. 641. 4 Outhouse v. Outhouse, 13 Hun (N. Y.), 130. said TALCOTT, J., "arises upon the rule laid down by the judge as to the measure of damages. He charged the jury, in effect, that if they found a verdict for the plaintiff, she was entitled to recover the full face of the note, with interest; that, notwithstanding the note was outlawed, it constituted a moral obligation sufficient to form a good consideration for a new note or new promise; that if the defendant should choose to set up the statute of limitations in a suit on the note, the defence would prevail, but that the defendant, being a wrong-doer, was entitled to no presumptions in his favor. It is true that the general rule in an action for the conversion of a note of a third party is, that the damages are to be measured by the amount apparently due upon the note, but it may be shown that by reason of part payment, or the insolvency of the party obligated to pay the note, or by reason of the existence of some legal defence to the note, the plaintiff has not, in fact, sustained damages to the extent of the face of the note by reason of its conversion.1 It is, however, held that where the maker of the note has converted it, in an action brought against him for such conversion he cannot set up his own insolvency by way of mitigating the damages. The statute of limitations is a good defence if specially pleaded. If not specially pleaded, it does not defeat an action on the obligation. The question is, whether it is to be presumed that the defendant would set up that defence to this obligation in behalf of his sister, as was conceded, for borrowed money and no part of which had been paid. Could such a presumption be indulged as being the course likely to be pursued by a man under such circumstances where the outlawry of the note was occasioned by the indulgence of his sister?" "But could such a presumption be indulged in favor of this defendant? He was a wrong-doer, a wilful trespasser and spoliator, and is not only deprived of all presumptions in his favor, but all presumptions are against him according to the maxim, Omnia presumuntur contra spoliatorem.' It was upon this ground that the judge at the circuit put his ruling on the question of the measure of damages, and we think it was a proper application of the rule.” SEC. 178. Consequential Injury. Although, as has been seen, time commences usually to run in a defendant's favor from the time of his wrongdoing, and not from the time of the occurrence to the plaintiff of any consequential damage, yet in order to produce this result it is necessary that the wrongdoing should be such that nominal damages may be immediately recovered. Every breach of duty does not create an individual right of action. And a distinction something similar to that which has been drawn by moralists between duties of perfect and imperfect obligation may be observed in duties arising from the law. Thus a breach of public duty may not inflict any direct immediate wrong on an individual; but neither his right to a remedy, nor his liability to be 1 Booth v. Powers, 56 N. Y. 22. precluded by time from its prosecution, will commence till he has suffered some actual inconvenience.1 But it is otherwise where there is a private relation between the parties, where the wrongdoing of one at once creates a right of action in the other; and it may be stated as an invariable rule that when the injury, however slight, is complete at the time of the act, the statutory period then commences, but, when the act is not legally injurious until certain consequences occur, the time commences to run from the consequential damage, whether the party injured is ignorant of the circumstance from which the injury results or not." 1 Hurst v. Parker, 1 B. & Ald. 92; Tanner v. Smart, 6 B. & C. 603. 2 In Bank of Hartford Co. v. Waterman, 26 Conn. 324, this question was carefully considered and the cases reviewed. In that case an officer who had undertaken to attach real estate on mesne process made return that he had attached a certain piece of land belonging to the defendant, and had left with the town clerk, as in such cases he was required by the statute to do, a true and attested copy of the writ and of his return thereon. In fact he had left a copy of the writ and his return in the town clerk's office, describing another and different piece of land from that described in his return on the original writ. Both pieces of land, however, belonged to the defendant, and either would have been sufficient to satisfy the plaintiff's demand. The error was not discovered until the plaintiff had attained judgment and taken out execution, at which time more than two years had elapsed both from the date of the levy and that of the return. The debtor in the mean time had failed, and no property could be found on which to levy the execution. In an action to recover for the officer's default, the statute of limitation was pleaded, and it was held that the cause of action did not accrue either at the time of the service of the writ or at that of the false return, but from the time when the plaintiff had sustained actual damage by his failure to secure satisfaction of his execution. "Ignorance of his rights," says STORRS, J., "on the part of the person against whom the statute has begun to run will not suspend its operation. He may discover his rights too late to take advantage of the appropriate remedy. Such is one of the occasional hardships necessarily incident to a law arbitrarily making legal remedies contingent on mere lapse of time. Brown v. Howard, 2 B. & B. 73; Sims v. Britton, 5 Exch. 802; Short v. McCarthy, 3 B. & Ald. 626; Blair v. Bromley, 5 Hare, 542; Battley v. Faulkner, 3 B. & Ald. 288. Strong, equitable considerations in favor of the present plaintiffs seem, however, to grow out of the fact that they were actually betrayed into ignorance of their rights by the wrongful acts of the defendant himself; that they were misled by the very record to which they might and should rightfully refer for knowledge of their rights, and of which the defendant himself was the author, having verified it under his official oath. It is palpably unjust for the defendant to set up the statute as a defence under such circumstances; to do so is, in one sense, taking advantage of his own wrong: yet it is difficult to see that he is not, by the clear provision of the statute itself, protected in so doing; nor are we aware of any well-established doctrine by which a party in a court of law can be prohibited, on the score of equitable estoppel, from defending himself under a public statute, designed to be of universal operation in the matter of legal remedies. LORD CAMPBELL properly suggested, relative to a controversy not unlike the present, that hard cases must not make bad law.' East India Co. v. Paul, 7 Moo. P. C. C. 85. At the same time, if the dictum of LORD MANSFIELD, in Bree v. Holbech, Doug. 655, that there may be cases which fraud will take out of the statute of limitations,' were confirmed by direct adjudication, we should be reluctant to withold the application of the doctrine in the present instance. See Blair v. Bromley, ante. "These views are, however, immaterial |