ant had lost his evidence. Thus, in an action for work and labor done as a physician, the defendant pleaded non assumpsit infra sex annos, and actio non accrevit infra, &c.; to which the plaintiff replied that, within six years of the time of the cause of action, he commenced a suit, and that it was carried on till a certain time, which was above six years from the cause of action, when, by order of the court, he was nonsuited; that afterwards he sued out the writ in the present action, and that both said suits were for the same cause, &c.: the court held a demurrer to this replication to be good, and had judgment entered for the defendant.1 Where an action was brought before the expiration of the time limited, and there were continuances over until after that time, and then the plaintiff was nonsuited, it was held, upon a second action brought, that he was barred; and this according both to the letter and the spirit of the statute, and to the uniform tenor of the decisions.2

1 Harris v. Dennis, 1 Serg. & Rawle (Penn.), 236.

2 Barino v. McGee, 3 M'Cord (S. C.), 452. If judgment be arrested or reversed for error, the plaintiff has one year thereafter within which he may commence a suit; but there is no such saving in case of nonsuit. Ivins v. Schooley, 3 Harrison (N. J.), 269. And see Richards v. Maryland Ins. Co., 8 Cranch (U. S.), 84. [On the 10th of April, 1847, the plaintiff commenced an action on a note dated July 24, 1841. The defendant pleaded a discharge under the insolvent laws. Plaintiff, on motion of the defendant, was required to specify the grounds upon which he should impeach the validity of the discharge, which he accordingly did. The case was continued from term to term, and at the trial the court refused to allow the plaintiff to give evidence of any facts not specified in his reasons for avoiding the discharge, whereupon the plaintiff became nonsuit; and on the 19th of August, 1849, brought another action upon the same note. Held, that the second action was barred. Swan v. Littlefield, 6 Cush. (Mass.) 417. In Crawford v. Cocks, cited ante, § 325, note, a nonsuit was taken off, and the plaintiff allowed to amend to avoid the operation of the statute. To a plea of the statute in an action on an official bond, a former suit, in which there was a nonsuit, cannot be replied. State v. Hawkins, 6 Ired. (N. C.) 428. The statute in North Carolina is held to apply to cases where there has been a nonsuit as well as where there has been a verdict which has been set aside, although the case of a nonsuit is not mentioned. Long v. Orrell, 13 Ired. 123. And if a suit at law be commenced and continued till the time limited against such suit has expired, the plaintiff may take a nonsuit, and bring a bill in equity for the same cause of action, within one year after the nonsuit. Hall v. Davis, 3 Jones, Eq. (N. C.) 413. And in Ohio, although the statute does not give an executor specifically the right to commence a new action after a nonsuit, the statute having expired, yet it is held to be within the equity of the statute. Haymaker v. Haymaker, 4 Ohio [N. s.], 272. The proviso that the plaintiff may commence a new action within a year after suffering a nonsuit means that the plaintiff must be the same, and the cause of action, but the defendant may be different. Williams v. Council, 4 Jones, Law (N. C.), 206. A non

329. It has been held, that if a man sue in chancery, and, pending the suit there, the statute attaches on his demand, and his bill is afterwards dismissed, as being a matter properly determinable at law, the right of action will be preserved. Lord Chancellor King said, that, in such a case, he would take care to preserve the plaintiff's right, and would not suffer the statute to be pleaded, in bar to his demand. But in a subsequent case, where a bill had been depending in chancery for six years, Lord Hardwicke held, that the bill was not such a demand as to take the debt out of the statute. So, in Virginia, it has been held, that if a bill in chancery be dismissed, on the ground that the plaintiff's claim is exclusively cognizable at law, the pendency of such suit in chancery cannot be pleaded to prevent the limitation from being a bar to his subsequent recovery at law. In the State of New York, previous to the revised statutes, the time that the holder of a note was stayed by an injunction from chancery from prosecuting the same, could not be replied in bar of a plea of the statute of limitations, and no case, the court said, by Bronson, J., had they met with where it was held, that an injunction out of chancery would suspend the running of the statute. The remedy of a party stayed, previous to the revision, was by application to chancery to restrain the defendant from pleading the statute.1

330. In the court of chancery, previous to the statute of 4 Anne, c. 16, § 22, it was not necessary to file the complainant's bill before the issuing and service of the subpoena to appear and answer; it being sufficient if the bill was afterwards filed; the

suit entered upon failure of the plaintiff to appear when called is not an abandonment of the suit within the meaning of the statute. Devalcourt v. Dillon, 12 La. An. 672. The dismissal of an action duly commenced within the period of limitation, because of an accidental omission of the clerk to enter it seasonably on the docket, is a defeat of the action for matter of form within Rev. Stat. c. 120, § 11. Allen v. Sawtelle, 7 Gray (Mass.), 165. And so is a dismissal, for want of jurisdiction, in case of a trustee process brought in the wrong county. Woods v. Houghton, 1 Gray (Mass.), 580. The court will protect parties against the consequence of mistakes of the clerk, where they would not aid them had the mistake been their own. Nazev v. Wade, 1 Ellis, B. & S. 728. But in Maine it is held that wrong venue is not matter of form. 3 Heath (38 Me.), 217. A mistake as to the form of the remedy is not “negligence in the prosecution." Flouncy v. Jeffersonville, 17 Ind. 169.]

1 1 Vern. 74.

21 Atk. 1. See Ib. 232.

Gray v. Berryman, 2 Munf. (Va.) 181. See also Ex parte Hawks, 1 Cheves (S. C.), Eq. 203.

4 Barker v. Millard, 16 Wend. (N. Y.) 572.

suit, as against the defendant himself, was then considered as commenced from the teste of the subpoena, as in suits at law commenced by original writs. At the present day, the filing of a bill and taking out the subpoena, and making a bona fide attempt to serve it, is the commencement of a suit in equity as against the defendant himself, so as to prevent the operation of the statute, if the suit be afterwards prosecuted with due diligence.2 But an amended bill making new parties has no relation to the commencement of the suit, for the purposes of the statute, and the statute will avail them at the period when they are made defendants. Until the defendants are made parties to the bill, the suit cannot be considered as having been commenced against them. “It would," say the Supreme Court of the United States, "be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice, and when a final decree in the case could not have prejudiced their rights." a

331. But a bill filed by one creditor, as plaintiff, in behalf of himself and others, will prevent the statute from running against any of the creditors, who came in under the decree. Every creditor has, after the filing of a bill, an inchoate interest in the suit, to the extent of its being considered as a demand, and to prevent his being shut out, because the plaintiff had not obtained a decree within the six years.*

1 Hayden v. Bucklin, 9 Paige (N. Y.), Ch. 512. That such was the decision of Lord Nottingham, was cited Pigott v. Nowen, 3 Swanst. 530, copied by the reporter from Lord Nottingham's notes.

2 Hayden v. Bucklin, supra; Webb v. Pell, 1 Paige (N. Y.), Ch. 564. [And the filing of the bill is the commencement of the action, although the subpoena be not taken out till the limitation has expired. Morris v. Ellis, 7 Jur. 413. See also Purcell v. Blannerhasset, 3 J. & L. 24. Where a bill was filed in 1819, and, the plaintiff having died in 1825, a bill of revivor was filed in 1828, and the defendant, continuing absent, and no appearance being entered, and one of the defendants having died in 1835, a bill of revivor was filed in 1838, and, the remaining defendant being still out of the jurisdiction of the court, service of the subpoena was then effected under 2 Will. 4, c. 33; it was held that the bill of 1828 prevented the bar of the statute, with an intimation that the bill of 1819 would have done the same. Foster v. Thompson, 2 Con. & L. 568.]

3 Miller v. M'Intyre, 6 Peters (U. S.), 61. [If during the pendency of a suit in chancery, any new matter or claim is set up by the complainant, the defendant may insist upon the benefit of the statute until the time when the new claim is presented. Dudley v. Price, 10 B. Mon. (Ky.) 84. Even though founded upon papers previously made exhibits in the case. Christmas v. Mitchell, 3 Ired. (N. C.) Ch. 535.]

4 Sterndale v. Hankinson, 1 Simon, Ch. 393; and 2 Con. Eng. Ch. 197.

332. In Stafford v. Bryan,1 in the New York Court of Chancery, the suit was not commenced until nearly eight years after the acknowledgment and promise; and although the complainant commenced two suits in the Supreme Court in the mean time, one of which was discontinued, and in the other he was nonsuited because he could not then prove sufficient to take the case out of the statute, it was held by the chancellor that neither of those suits could avail any thing.

1 Stafford v. Bryan, 1 Paige (N. Y.), Ch. 239.

CHAPTER XXIX.

OF REAL PROPERTY AND THE LIMITATION OF REAL ACTIONS.

333. No code or system of jurisprudence has ever prescribed a title to property in land, which more evidently foreshows a highly civilized condition of society than that established by the municipal law throughout this country. The possession of the landowner by the local law of every State is, at least to every intent and purpose, as near to being allodial as was that of the Roman landholder under the jurisprudence of Justinian. All understand that the term "allodial" is used to denote property in land absque aliquo inde reddendo, or of undivided dominion; and that it is thus essentially distinguishable from the term tenure, which is significant of an estate retained by a superior. The peculiar qualities of allodial land are alienation at the will of the owner, availableness as security for the performance of private contracts, liability to be taken and sold by creditors in extinguishment of their claims against dishonest, contumacious, or bankrupt debtors, and, in short, fitness to meet both the natural wants of individuals, and the exigencies of society.2 Between these concomitants of land-title, and those of the land-title introduced into Southern and Western Europe by the barbarians of the North, who subverted the empire of Rome, there was nothing consentaneous. The latter were those of dependency, vassalage, and prohibition. The right of the feudal possessor, of whatever grade, consisted alone in the usufruct, or profits yielded by the land, either in a state of nature, or under a state of rude and immethodical cultivation. The superior right, the jus proprietatis, or (according to the expression used by the early English lawyers) the feudum dominans, or (according to that used by modern lawyers) the fee, remained in the lord, or principal military conqueror, from whom the limited and incum

The Roman land-owner did not hold of any superior. This possession was perfectly allodial, and wholly independent; and tenures were equally strangers to the English before the feudal policy was introduced. 1 Brown's Civil Law, Ch. III. 23 Kent's Com. 497.