M’Lean, in giving the opinion of the Supreme Court of the United States, in 1830, says: "Of late years, the courts in England and in this country have considered statutes of limitations more favorably than formerly. They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the effect of those statutes." 1

24. Under the thirty-fourth section of the Judiciary Act of 1789, the acts of limitations of the several States, where no special provision has been made by Congress, form a rule of decision in the courts of the United States; and the same effect is given to them as is given in the State courts.2 In accordance, besides, to a steady course of decisions for many years, the Fed-' eral judiciary feel it an incumbent duty carefully to examine and ascertain if there be a settled construction by the State courts of the statutes of the respective States, where they are exclusively in force; and to abide by and follow such construction, when found to be settled.3 There is no unwritten or common law of the

1 M'Cluny v. Silliman, 3 Peters (U. S.), 270. See also Richmond v. Maryland Ins Co., 8 Cranch (U. S.), 84; Beatty v. Burnes, Id. 98; Bradstreet v. Huntington, 5 Peters (U.S.), 407. As to the corresponding views entertained by the State courts, see post, chap. on New Promises and Acknowledgments. There is a perfect coincidence between the views expressed by courts, both American and English, at the present day, and those expressed by Sir Orlando Bridgman, "one of the most eminent lawyers about the period of the Restoration." In Benyon v. Evelyn, Orl. Bridgman's Judgments, 363 (Anno 1664), he says, in reference to the limitation of actions: "It is better to suffer a particular mischief than a general inconvenience; and such a one must happen if way be given to equitable constructions against the letter of the act, which is that they shall be sued within six years after the cause of action. But it rests not there, but adds, and not after,' which negative words are the strongest that can be in law." Wilk. on Lim. 52. The volume of Bridgman's Reports was printed from the MSS. of Mr. Hargrave, and first appeared in 1823. They embrace the period between 1660 and 1667. Mr. Fonblanque speaks of these reports, of which Mr. Hargrave had lent him the MSS., as far exceeding Carter's in copiousness, depth, and correctness. 2 Treat. on Eq. 172, n. See "Reporter's Chron. Arranged," by Wallace, p. 41; Philadelphia, 1845. [Phillips v. Pope, 10 B. Mon. (Ken.) 163; Dickinson v. McCanney, 5 Geo. 486; Elder v. Bradley, 2 Sneed (Tenn ), 247; McCarthy v. White, 21 Cal. 495; McQueen v. Babcock, 3 Abb. (N. Y.) App. Dec. 129. And see also Bodell v. Janney, § 194, note.]

M'Cluny v. Silliman, 3 Peters (U. S.), 270.

See also Woodworth

* Bank of United States v. Daniels, 12 Peters (U. S.), 32. e. Spalford, 2 McLean (Cir. Co.), 168; Jasper v. Potter, Id. 579. "We are bound," says Mr. Justice Catron, in giving the opinion of the Supreme Courts of the United

Union.

The rule of action is found in the different States, as it may have been adopted and modified by legislation and a course of judicial decisions. The rule of decision must be found in the local law, written or unwritten.1

States, "to conform to the decisions of the State courts of New York, in the construction of their acts of limitation." Harpending v. Dutch Church, 16 Peters (U. S.), 455; [Porterfield v. Clark, 2 How. (U. S.) 76.]

1 Per Mr. Justice McLean, in Norman v. Clark, 2 McLean (Cir. Co.), 572.

CHAPTER III.

LIMITATIONS OF SUITS IN EQUITY.

25. Ir requires but a partial familiarity with the rules and practice of a court of equity to be aware that laches and neglect have been invariably and decidedly discountenanced in that court; and that it was so from the commencement of its jurisdiction, and before any positive act of the legislature for the limitation of actions at law was promulgated. From the period when proceedings at law were subject to particular limitations, courts of chancery have, with striking uniformity, applied it in similar cases within the sphere of their jurisdiction. Sir Thomas Plummer, Master of the Rolls, after reviewing the cases in which lapse of time had been considered a bar in those courts, stated the effect of them to be, first, that they have ever, upon general principles of their own, even when there was no analogous statutable bar, refused relief to stale demands, where the party had slept upon his right; and secondly, that, after a bar has been fixed by statute to the legal remedy, the remedy in a court of equity has, in analogous cases, been confined to the same period. He then stated it to be clear, that, had the claim in question before him been the claim of a legal estate in a court of law, the remedy would have been barred by the statute of limitations; and it was therefore clear that, being an equitable claim, the remedy was equally barred in a court of equity.2

1 See Smith v. Clay, 3 Bro. Ch. 630; Bond v. Hopkins, 1 Sch. & Lefr. 413; Beckford v. Wade, 17 Ves. 96; Cholmondeley v. Clinton, 2 Jac. & Walk. Ch. 1; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90.

2 Cholmondeley v. Clinton, supra; [Bowman v. Wathen, 1 How. (U. S.) 189; Chapman v. Butler, 22 Me. 19; Phillips v. Rogers, 12 Met. (Mass.) 405; Cleveland Ins. Co. v. Reed, 1 Biss. C. C. (U. S.) 180. But when the court perceives that the party complaining has equitable rights, and that the remedy at law might have proved insufficient, or for other good reasons, it will not refuse relief although the claim has been outstanding for a long time. Ibid.; Mason v. Crosby, 1 Daveis (U. S.), 303; Lunn v. Johnson, 3 Ired. (N. C.) Ch. 70. And see also,

26. "Courts of equity," says Lord Redesdale,1" are not within the words of the statutes, because the words apply only to particular legal remedies; but they are within the spirit and meaning of the statutes, and have been always so considered." In point of language, he thought it was a mistake to say that courts of equity act merely in analogy to the statutes; and in his apprehension they acted in obedience to them. That they act in obedience, it has been pronounced by eminent authority 2 to be correct in its application to a particular class of cases, as, for example, in matters of account, to which they directly apply, and seem equally obligatory upon each court. There is a class of cases, however, in respect to which courts of equity act upon the analogy of limitations at law. In illustration of this proposition, the following cases are given in the able work just referred to below: If a legal title would, in ejectment, be barred by twenty years' adverse possession, courts of equity will act upon the like limitation, and apply it to all cases of relief sought upon equitable titles, or claims touching real estate; if the mortgagee has been in possession of the estate mortgaged for twenty years, without acknowledging the existence of the mortgage, it will be presumed that the mortgage is foreclosed, and that he holds by an absolute title; if the mortgagor has been in possession of the mortgaged estate for the like space of time, without acknowledging the mortgage debt, it will be presumed to be paid; if a judgment creditor has lain by for twenty years, without any effort to enforce his judgment, and it has not been acknowledged

Bancroft v. Andrews, 6 Cush. (Mass.) 493; Kimball v. Ives, 17 Vt. 430; s. c. 8 Law Rep. 265. On the other hand, even where claims are not barred by the statute of limitations, a court of equity will refuse to interfere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice between the parties (which, as a court of conscience, it is bound to do), when the original transactions may have become obscure by time and the evidence may be lost.. Ferson v. Sanger, 1 Daveis (U. S.), 252; Hunt v. Ellison, 32 Ala. 173; Wilson v. Anthony, 19 Ark. 16; Mason v. Crosby, 1 W. & M. (U. S.) 342; Kerby v. Jacobs, 13 B. Mon. 435; Baker v. Baker, Id 406; Hamlin v. Mebane, 1 Jones (N. C.), Eq. 18; post, § 171. But if fraud exists, or the delay is satisfactorily accounted for, or such a course would work injustice, the lapse of time, short of the statute of limitations, is no bar. Warner v. Daniels, 1 W. & M. (U. S.) 90. A claim to real property, however, will not be permitted to be barred by a lapse of time shorter than that which would have barred an action of ejectment at law. Dugan v. Gittings, 3 Gill (S. C.), 138.]

1 Hoveden v. Lord Annesley, 2 Sch. & Lefr. 329.

2 2 Story, Eq. Jur. § 1520.

by the debtor within that time, it will be presumed to be satisfied. "Wherever," says Sir Thomas Plummer, "any statute has fixed the periods of limitations, by which the claim, if it had been made in a court of law, would have been barred, the claim has been, by analogy, confined to the same period in a court of equity." It was said by Mr. Justice Catron, in giving the opinion of the Supreme Court of the United States, in 1838, that courts of equity are no more exempt from statutes of limitation than courts of law.2

27. As to the application of the rule in those States of this country wherein there was no equitable jurisdiction established when the statute of limitations was passed, we have the following exposition of Parker, C. J., in delivering the opinion of the Supreme Court of Massachusetts: "The statute of limitations may

1 Cholmondeley v. Clinton, 2 Mer. Ch. 173.

2 Bank of United States v. Daniels, 12 Peters (U. S.), 56. See also Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90; Robinson v. Hook, 4 Mason (Cir. Co.), 139; Miller v. M'Intyre, 6 Peters (U. S.), 61; Baker v. Biddle, Bald. (Cir. Co.) 419; Hawkins v. Barney, 5 Peters (U. S.), 457; Coulton v. Waters, 4 Id. 62; Boone v. Chiles, 10 Id. 177; Elsmendorf v. Taylor, 10 Wheat. (U. S.) 152; Bowman (devisees of) v. Walten, 2 M'Lean (Cir. Co.), 376; Piatt v. Vattier, 1 Id. 16; s. c. 9 Peters (U. S.), 416. The statute has no application, eo nomine, to a bill in equity, even when that is concurrent with the remedy at law; yet a court of chancery allows it to be pleaded in such case, for the reason that the party should not be allowed to evade its effect by resorting to another forum. People v. Everest, 4 Hill (N. Y.), 71, per Cowen, J.; [Bruen v. Hone, 2 Barb. (N. Y.) S. C. 586; McCartee v. Camel, 1 Barb. (N. Y.) Ch. 455; Michoud v. Girod, 4 How. (U. S.) 591; Taylor v. Benham, 5 How. (U. S.) 233; Perkins v. Cartwell, 4 Har. (Del.) 270; Manchester v. Matthewson, 3 R. I. 237; Dean v. Dean, 1 Stat. (N. J.) 425; Vardeman v. Lawson, 17 Texas, 10. And see post, § 77, n. If the matter in controversy in a court of chancery is of a purely equitable nature, not cognizable in a court of law, the statute of limitations has no application, but the court will apply the doctrine of neglect and lapse of time according to discretion, regulated by precedents and the peculiar circumstances; but when the two courts have concurrent jurisdiction, and also when the aid of equity is invoked on account of special circumstances, such as the need of a discovery, the difficulty of proceeding at law or the like, the statute is as effectual a bar as at law, with the qualification, that in cases of fraud it commences running from the time of the discovery of the fraud. Per Hoffman, V. Ch., Lawrence v. Trustees, &c., 2 Denio (N. Y.), 577. But whère a remote grantee of lands filed a bill in chancery to establish a lost deed in his chain of title, and the widow and heirs of this grantee in the lost deed, being made parties defendant, set up, as a defence to the relief sought, the statute of limitations, barring a right of entry and claiming title in themselves, it was held, that this was no answer to the relief sought, this establishment of a lost deed; and that, in fact, as the defendants claimed under that deed, the proceeding was not adverse to them. Rockwell v. Servant, 54 Ill. 251.]