all cases of real actions, and of actions touching things savoring of realty, the lex rei sitæ prevails.1

67. There is, however, a distinction between statutes of limitation, to which Judge Story refers in his " Conflict of Laws," and which he there treats as deserving of consideration. It is this: suppose the statutes of limitation of a particular country do not only extinguish the right of action but the claim itself, and declare it a nullity after the lapse of the time prescribed; and the parties are resident within the jurisdiction during the whole of that period, so that it has fully operated upon the case. Then the question, says the learned writer, might properly arise, whether such statutes of limitation may not afterwards be set up, in any other country to which the parties may remove, by way of extinguishment or transfer of the claim. That there are countries in which such regulations do exist in respect to real property is unquestionable; 2 and there are States which have declared that all right to debts due more than a prescribed term of years shall be deemed extinguished. It has been held, that where personal property is adversely held in a State for a period beyond that prescribed by the laws of that State, and, after that period has elapsed, the possessor should remove into another State, which has a longer period of prescription or none at all, the title of the possessor cannot be questioned. Thus it has been held by the Supreme Court of the United States, that five years' possession of a slave constitutes a title by the laws of Virginia, which might be set up as a defence by the defendant in the courts of Tennessee. But other than in that court the principle does not seem hitherto to have obtained, in this country, any direct recognition.5 On the contrary, in Bul

Scotland, and there continued till his death, that more than six years having elapsed between the time of the bills becoming due, and the action being brought, the Scotch law of prescription applied. Don v. Lipmann, 5 Clark & Finn. 1. [Egberts v. Dibble, 3 McLean (U. S.), 86; Estes v. Kyle, 11 Meigs (Tenn.), 34; Watson v. Brewster, 1 Penn. St. 381; Crocker v. Arey, 8 R. I. 178; Thibodeaux v. Levasseur, 1 Heath (36 Me.), 362; Fletcher v. Spaulding, 9 Minn. 64; Bigelow v. Ames, 18 Minn. 537; Murray v. Fisher, 5 Lan. (N. Y.) 98. And see ante, § 66, p. 63, n. 1.] 1 Story's Conflict of Laws, 482 et seq.

2 See ante, § 5.

3 In support of this position, the author of the "Conflict of Laws" cites J. Voet, ad Pand. Lib. 44, tit. 3, §§ 5, 6, 9; Ersk. Inst. b. 3, tit. 7, §§ 1, 2, 7, 8; Beckford v. Wade, 17 Ves. 86; Lincoln v. Battelle, 6 Wend. (N. Y.) 475.

4 Shelby v. Guy, 11 Wheat. (U. S.) 361, 471. See also Brent v. Chapman, 5 Cranch (U. S.), 358; Newby v. Blackley, 3 Hen. & Munf. (Va.) 57.

5

6 [In Brown v. Brown, 5 Ala. 108, it was held that the length of adverse possession

ger v. Roche, in Massachusetts, where both parties resided during the whole period of the running of the statute in Nova Scotia,

of personal property necessary to bar a claim against the possessor must be determined by the laws of the place where the adverse possession is had. And in the recent case of Townsend v. Jamison, 9 How. (U. S.) 407, the case of Shelby v. Guy is referred to and vindicated on the ground that there is a distinction between statutes giving title by possession, and such as only limit the time of bringing suits. In Shelby v. Guy, this court declared that, as by the laws of Virginia, five years bona fide possession of a slave constitutes a good title upon which the possessor may recover in detinue, such a title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brought by a third party in those courts. The same had been previously ruled in this court in Brent v. Chapman, 5 Cranch, 358; and it is the rule in all cases where it is declared by statute that all rights to debts due more than a prescribed term of years shall be deemed extinguished, and that all titles to real and personal property not pressed within the prescribed time shall give ownership to an adverse possessor. Such a law, though one of limitation, goes directly to the extinguishment of the debt, claim, or right, and is not a bar to the remedy. Lincoln v. Battelle, 6 Wend. 475; Conflict of Laws, 582.

“In Lincoln v. Battelle, 6 Wend. 475, the same doctrine was held. It is stated in the Conflict of Laws, 582, to be a settled point. The courts of Louisiana act upon it. We could cite other instances in which it has been announced in American courts of the last resort. In the cases of De la Vega v. Vianna, 1 Barn. & Adol. 284, and the British Linen Company v. Drummond, 10 Barn. & Cres. 903, it is said, that, if a French bill of exchange is sued in England, it must be sued on according to the laws of England, and there the English statute of limitations would form a bar to the demand if the bill had been due for more than six years. In the case of Don v. Lipmann, 5 Clark & Finn. 1, it was admitted by the very learned counsel who argued that case for the defendants in error, that, though the law for expounding a contract was the law of the place in which it was made, the remedy for enforcing it must be the law of the place in which it is sued. In that case will be found, in the argument of Lord Brougham before the House of Lords, his declaration of the same doctrine, sustained by very cogent reasoning, drawn from what is the actual intent of the parties to a contract when it is made, and from the inconveniences of pursuing a different course. In Beckford and Others v. Wade, 17 Vesey, 87, Sir William Grant, acknowledging the rule, makes the distinction between statutes merely barring the legal remedy and such as prohibit a suit from being brought after a specified time. It was a case arising under the possessory law of Jamaica, which converts a possession for seven years under a deed, will, or other conveyance, into a positive absolute title, against all the world, - without exceptions in favor of any one or any right, however a party may have been situated during that time, or whatever his previous right of property may have been. There is a statute of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee there is an act in some respects similar to the possessory law of Jamaica. It gives an indefeasible title in fee-simple.to lands of which a person has had possession for seven years, excepting only from its operation infants, feme coverts, non compotes mentis, persons imprisoned or beyond the limits of the United States and the Territories thereof, and the heirs of the excepted, provided they bring actions within three years after they have a right to sue. Act of November 16, 1817, c. 28, § 1, 2. So in North Carolina,

1 Bulger v. Roche, 11 Pick. (Mass.) 36.

where the right of action was extinguished by the local law, it was held, that the right of action, after a change of domicile of the defendant, by a removal to Massachusetts, was not thereby extinguished in the State tribunals; but might be pursued within the period prescribed by the statute of limitations of Massachusetts.1 Lord Brougham, in delivering his opinion in Don v. Lipmann, in the House of Lords, refers to this distinction taken by Judge Story, and calls it an "excellent " one. In that case it was said that, by the law of Scotland, not the remedy alone was taken away, but that the debt itself was extinguished; but under the Scotch law of prescription, Lord Brougham said, there was no ground for the distinction, and that the debt was still supposed to be existing and owing, though the act of limitation of 1772, of Scotland, was strong with respect to the remedy to be enforced. The authority of Judge Story for the distinction was likewise cited by the counsel in Huber v. Steiner, in the English Court of Common Pleas,2 and Chief Justice Tindal, in delivering the opinion, said, that there is a provision in the act of 1715, c. 17, § 2, with the same exceptions as in the act of Tennessee, the latter being probably copied substantially from the former. Thirty years' possession in Louisiana prescribes land, though possessed without title and mala fide.

"We have mentioned those acts in our own States, only for the purpose of showing the difference between statutes giving title from possession, and such as only limit the bringing of suits. It not unfrequently happens in legislation, that such sections are found in statutes for the limitation of actions. It is in fact because they have been overlooked, that the distinction between them has not been recognized as much as it ought to have been in the discussion of the point, whether a certain time assigned by a statute, within which an action must be brought, is a part of the contract, or solely the remedy. The rule in such a case is, that the obligations of the contract upon the parties to it, except in well-known cases, are to be expounded by the lex loci contractus. Suits brought to enforce contracts, either in the State where they were made or in the courts of other States, are subject to the remedies of the forum in which the suit is, including that of statutes of limitation." Blackburn v. Morton, 16 Ark. 384.]

66

1 "A doubt," says Chief Justice Shaw, in this case, was intimated in Le Roy v. Crowninshield (2 Mason, Cir. Co. 151), whether, if the parties had remained subjects of the foreign country until the term of limitation had expired, so that the plaintiff's remedy would have been extinguished there, such a state of facts would not have presented a stronger case, and one of more serious difficulty. Such was the case in the present instance. But we think it sufficient to advert to a well-settled rule in the construction of the statute of limitations, to show that this circumstance can make no difference." [Way v. Sperry, 6 Cush. (Mass.) 239; Carpenter v. Wells, 21 Barb. (N. Y.) 359. Contra by statute in Ohio, Indiana, and Texas, Hays v. Cage, 2 Texas, 501; Gordon v. Preston, Wright (Ohio), 341; Horton v. Horner, 16 Ohio, 145; Van Dorn v. Bodley, 38 Ind. 402; Snoddy v. Cage, 5 Texas, 106.]

2 Huber v. Steiner, 2 Bing. (New R.) 202 (5 Will. IV.).

undoubtedly the distinction, when taken with the qualification annexed to it by the author himself, appeared to be well founded. That qualification is, that the parties are resident within the jurisdiction all that period. "With such restriction," says Chief Justice Tindal," it does indeed appear but reasonable, that the part of the lex loci contractus, which declares the contract to be absolutely void at a certain limited time, without any intervening suit, should be equally rescinded by the foreign country, as the part of the lex loci contractus, which gives life to, and regulates the construction of the contract; both parts go equally ad valorem contractus both ad decisionem litis." But in this case, which was in respect to a promissory note, the French law of prescription appertains only to the time and mode of instituting the remedy,"ad tempus et modum actionis instituendæ ;" and, therefore, the payee of promissory notes made in France may sue the maker, if resident in England, during six years from the time they became due.1

1 See Taberrer v. Brintnall, 3 Har. (N. J.) 262; Beardsly v. Southmayd, 3 Green (N. J.), 171. [The general doctrine undoubtedly is that the right is not extinguished by the currency of the statute, and that the lex fori determines the question whether the statute is pleadable. Johnson v. Albany, Sus. R. R. Co. 54 N. Y. 411; Jones v. Jones, 18 Ala. 248, overruling Goodman v. Monks, 8 Port. (Ala.) 84; Sichel v. Carrillo, 42 Cal. 493; Sloan v. Waugh, 18 Iowa, 224; But see ante, p. 58, note. In Kansas the limitation of a foreign statute may reduce, but cannot extend the time limited by the code. Hoggett v. Emerson, 8 Kan. 262.

CHAPTER IX.

WHAT ACTIONS AND DEMANDS EX CONTRACTU MAY BE BARRED.

68. By the third section of the statute 21 James I. it is provided (and the acts of limitation in this country contain, at least substantially, the same provision, and therefore are subject to like construction 1), that all actions upon the case (other than for slander), actions of account, actions for trespass, debt, and detinue, shall be brought within six years next after the cause of such actions, and not after. The exception in the statute concerning the trade of merchandise, between merchant and merchant, and the limitations of actions upon torts, contained in the same section, are reserved for separate chapters.2

69. The action of account, which is limited by the statute, is one of the most ancient at common law. It was a remedy resorted to in cases where there was a privity, as against a bailiff or receiver, or a privity in law, as against a guardian in socage; and it is more like a bill in equity for enforcing the execution of a trust than an ordinary action. The first judgment is, that the defendant do account, which is usually called a judgment quod computet; whereupon, the defendant, offering to account, the court assigns auditors to take and declare the account between the parties; and then the final judgment is, that the plaintiff do recover against the

1 Ante, § 21.

2 [The Tennessee statutes of limitations apply as well to motions made under a statute, as to actions, and where the time within which action may be brought is limited to six years, as in debt, for instance, a motion will be barred also. So when the time within which action may be brought is limited to three years, as in an action on the case against a sheriff for making an insufficient return, a motion under the statute relative thereto will also be barred. Prewett v. Hilliard, 11 Humph. (Tenn.) 423. The statute provides that the officer shall be liable on motion. Statutes of limitation are in aid of the common law, and furnish a general rule for cases that are analogous in their subject-matter, but for which a remedy unknown to the common law has been provided by statute. Thus they apply to a case where compensation is sought for damages for land taken for a railroad. Forster v. Cumberland Railroad Co., 23 Penn. St. 371. The statute, though in terms applicable to actions only, applies to all claims that may be the subject of actions, however presented. Hart's Appeal, 32 Conn. 521.]