years, and actions upon a forfeiture or penalty to the State, which is barred in two years, and upon penal statutes where the penalty is given in whole or in part to the person who prosecutes, which are barred in one year; and all matters not otherwise provided for are barred in ten years, which necessarily embraces all specialties not specially provided for. In Kansas, all actions upon specialties are barred in three years. In Nevada, specialties come under the general clause of sec. 18, and are barred in three years, except actions upon a statute other than a penalty or forfeiture; and for a penalty or forfeiture to the State in two years, and also where it is given to an individual. In Nebraska,2 actions upon specialties are barred in four years, except statutes for a penalty or forfeiture, which are barred in one year.

8

SEC. 38. When Concurrent Remedy is given by Statute. - From this summary it will be seen that in several of the States this class of claims are not embraced within the statute, but are left either to the operation of statutory or common-law presumptions. But, as we have seen, it is only where the statute creates the liability, and is directly the ground of the action, that it is exempt from the operation of the statute. Thus, where property is taken under a statute which also provides a remedy for the assessment of consequential or other damages, the statute does not apply. But if, instead of resorting to his statutory remedy, a party resorts to his legal title and common-law remedy, as trespass or ejectment, the statute bars his claim as to past damages in six years. The doctrine stated supra was well expressed by STORY, J., in a case where, under the statute, it was sought to recover a debt against a corporation against one of its stockholders. The action was debt, and the defendant insisted that the action would not lie, as

1 Appendix, Nevada. Appendix, Nebraska.

Under the New York statute, referred to ante, an action was brought against a stockholder of an incorporated trading company, the charter of which provided that a creditor might, after judgment obtained against the corporation, and execu tion returned unsatisfied, sue any stockholder therefor. It was held that the action was not barred in three years, under the provisions of the statute referred to ante, because the liability was not created by statute, but was a valid claim for six years. Corning v. McCullough, 1 N. Y. 47. But while in this case the form of the action was assumpsit, it is difficult to appreciate the reasoning of the court that the liability was not created by statute. It is true that the original claim upon which the judgment sought to be enforced against the stockholder was created by the act of the

parties, but the defendant's liability therefor was created by the statute, and could not exist independently of it; and this being the case, we are decidedly of the opinion that the decision is wrong, and that the doctrine expressed by STORY, J., in Bullard v. Bell, 1 Mas. (U.S. C. C.) 243, in a case involving a similar question, is the true one.

Hannum v. West Chester, 63 Penn. St. 475; Forster v. Cumberland Valley R. R. Co., 23 id. 371, holding a contrary doctrine, was overruled by Delaware, L. & W. R. R. Co. v. Burson, 61 id. 369; McClinton v. Pittsburgh, &c. R. R. Co., 66 id. 404. A municipal assessment is not within the statute. Council v. Moyamensing, 2 Penn. St. 224; Magae v. Chambersburgh, 46 id. 358.

5 McClinton v. Pittsburgh, &c. R. R. Co., ante.

66

the undertaking was collateral, and was barred in six years, as any other simple contract would be. But the court held that as the statute created the liability, and the right of action would not exist independently of it, the case was not within the statute of limitations then existing in New Hampshire (where the action arose), which, so far as specialties are concerned, was identical with the statute 21 James I. He said: "I agree at once to the position that the bills of the bank are to be considered originally as the debts of the corporation, and not of the corporations; and, except from some special provision by statute,. the latter cannot be made answerable for the acts or debts of the former. They are altogether in law distinct persons, and capable of contracting with each other. But the corporators are not strangers to the corporation. On the contrary, the law contemplates a privity between them; and upon that privity has created an obligation on the corporators, under certain circumstances, to pay the debts of the corporation. Nothing can be better settled than that an action of debt lies for a duty created by the common law or by custom; a fortiori it must lie where the duty is created by statute. Whatever is enjoined by statute to be done creates a duty on the party, which he is bound to perform. The whole theory and practice of practical and civil obligations rest upon this principle. When, therefore, a statute declares that, under certain circumstances, a stockholder in a bank shall pay the debt due from the bank, and those circumstances occur, it creates a direct and immediate obligation to pay it. The consideration may be collateral or not; but it is not a subject of inquiry, and to deny that it is a duty on the stockholder to pay the money is to deny the duty of the statute itself, for a duty is nothing more than a simple obligation to perform that which the law enjoins. Here, then, the law has declared that the stockholders shall be liable to pay a specific sum, and it imposes on them a duty to do so. How, then, can the court say that debt does not lie, since there is a duty on the defendant to pay a determinate sum of money? There is no reason, under this view of the case, for entertaining any question as to collateral undertakings. The law has created a direct liability, - a liability as direct and cogent as though the party had bound himself under seal to pay the amount, in which case debt would undoubtedly lie. The law esteems this an obligation created by the highest kind of specialty. Indeed, if debt would not lie in this case, it is inconceivable how assumpsit could. There is no pretence of any express promise; and if a promise is to be implied, it must be because there is a legal liability, independent of any promise to sustain one. Now, the very notion of a collateral undertaking is, that there exists no legal liability independent of the promise to create a duty. And if there exists a duty sufficient to create a promise, then it is sufficient to sustain an action of debt."

SEC. 39. Test as to whether Specialty or not. - It may be said that the test by which to determine whether a statute creates a spe

cialty debt or not is, whether, independent of the statute, the law implies an obligation to do that which the statute requires to be done, and whether independently of the statute a right of action exists for the breach of the duty or obligation imposed by the statute. If so, then the obligation is not in the nature of a specialty, and is within the statute, so long as the common-law remedy is pursued; but if the statute creates the duty or obligation, then the obligation thereby imposed is a specialty, and is not within the statute. If the statute imposes an obligation, and gives a special remedy therefor, which otherwise could not be pursued, but at the same time a remedy for the same matter exists at the common law independently of the statute, and the statute does not take away the common-law remedy, the bar of the statute is effectual when the common-law remedy for the breach of the common-law duty or liability is pursued, but is not applicable when the special statutory remedy is employed. It must be understood, however, that if the statute merely changes the remedies existing before, and the change is general as to a particular class of liabilities existing before, no change arises therefrom as to the application of the statute of limitations, as it is not the nature of the remedy, but of the claim upon which the remedy is predicated, that determines this question.2

SEC. 40. Actions for Distributive Share of Estate. Actions for the distributive share of the personal estate of an intestate are not within the statute, nor are the ordinary actions for the recovery of legacies, as none of the statutes in this country have adopted the provisions of the statute 3 & 4 Wm. IV. c. 27, the fortieth section of which bars all action for the recovery of legacies after the lapse of twenty years. The first-named English statute applies to all legacies, whether charged upon land or not, and also to residuary property."

1 McClinton v. Pittsburgh, &c. R. R. Co., ante. In Hannum v. West Chester, 63 Penn. St. 475, it was held that, where property has been damaged by a public improvement, the statute of limitations does not apply to the remedy given by the statute therefor; but in the case first cited in this note, where lands were taken for railroad purposes, it was held that, if the land-owner pursued the statutory remedy, the statute of limitations did not apply thereto, but that if he resorted to his legal title and brought ejectment, as to that remedy, the statute did apply.

2 Murray v. East India Co., 5 B. & Ald. 204; Coply v. Dormique, 2 Lee, 166; Freeland v. McCullough, 1 Den. (N. Y.) 414. In De Haven v. Bartholomew, 57 Penn. St. 122, the court very pertinently say, it is the nature of the cause of action, and not the remedy itself, which

determines the applicability of the stat

ute.

In a New York case, Pease v. Howard, 14 Johns. (N. Y.) 479, the court say, "The words 'action of debt founded upon any contract without specialty,' only embrace debts founded upon contract in fact, not such as arise by construction of law."

3 Pennepacker v. Pennepacker, 2 Clark (Penn.), 114; Patterson v. Nicholl, 6 Watts (Penn.), 379; Gemberling v. Meyer, 2 Yeates (Penn.), 341, holding a contrary doctrine, was directly overruled by Pennepacker v. Pennepacker, ante.

4 See Stat. 3 & 4 Wm. IV. § 40, Appendix. By sec. 9, Stat. 37 & 38 Vict. c. 57, the period has been reduced to twelve years.

5 Sheppard v. Duke, 9 Sim. 567; Bullock v. Downes, 9 H. L. Cas. 1.

• Prior v. Hornblow, 2 Y. & C. Ex. 200.

Previously to that act, in England, as is still the case in this country, the right of a legatee was never barred except by presumption of payment, and this presumption could never be raised when contrary to the duty of the executor. In all cases, as well under this statute as in the case of presumptions, neither the statute nor the presumption of payment attaches until twenty years after a present right to receive the

same.

CHAPTER IV.

AVAILABLE FOR AND AGAINST WHOM.

SEC. 41. Personal Privilege.

42. Limitations by Contract.

43. Effect of War upon Conditions.

44. Premature Actions.

45. When Adjustment is essential.

46. Effect of Appointment of Receiver.

47. Parol Contracts.

SEC. 41. Personal Privilege. The plea of the statute of limitations is generally a personal privilege, and may be waived by a defendant, or asserted, at his election; but where he has parted with his interest in property, his grantees, mortgagees, or other persons standing in his place are entitled to avail themselves of all the advantages of this plea.1 But it has been held that an equitable owner of land, subject to a ground-rent reserved by deed, cannot interpose the statute as a bar to an action for the rent.2. A cestui que trust may set up the statute whenever his trustee might do so; and where an executor or administrator in an action against him, as such, fails to plead the statute, the heirs or legatees may take advantage of it when the creditor undertakes to subject the lands in his hands to the debt; and generally any person in privity with the claim sought to be enforced may set up the statute in bar thereto, as an executor, administrator, assignee,5 trustee, or any

1 Grattan v. Wiggins, 23 Cal. 16; Lord v. Morris, 18 id. 482; Elkinton v. Newman, 20 Penn. St. 281; Biddle v. Moore, 3 id. 161; Dawson v. Callaway, 18 Ga. 573; Skidmore v. Romaine, 2 Bradf. (N.Y. Surr.) 122; Ferguson v. Brown, 1 id. 10. Indeed, unless a party sets up the statute by plea, it is treated as a waiver of the privilege, Sturges v. Burton, 8 Ohio St. 215; and this rule is so strong, that the courts refuse to allow the amendment of a defective plea, although the effect is to deny to the defendant this statutory privilege, Johnson v. Green, 4 G. & J. (Md.) 381; Nelson v. Bond, 1 Gill (Md.), 218;