of this question. Lord Ellenborough says: "The only ques tion is, On whom is the issue? Now, the affirmative of the issue is on the plaintiff, who says that the cause of action did accrue within six years." In Huston v. McPherson, 8 Blackf. 562, which was a case arising upon a plea of the statute of limitations in an action of slander, the court held the burden. of proof was upon the plaintiff.

The case of Emmons v. Hayward, 11 Cush. 48, is cited and relied upon as sustaining a contrary doctrine. If it does so, it is merely incidental, as no question of the burden of proof was raised or discussed. It merely affirmed the proposition that a defendant, by filing an admission of all the facts necessary to be proved by the plaintiff in his opening on the general issue, in order to obtain the right to open and close under the forty-first rule of the court of common pleas, was not thereby estopped from setting up in defense the statute of limitations. The action was assumpsit upon a special contract for the payment of money. The court, in assigning the reasons for their decision, assume the statute of limitations to be a matter strictly in avoidance, and that the special matter of defense under that plea is to be made out by the defendant. But the question we are now considering does not appear to have been in the mind of the court, nor was any question directly raised and discussed as to the burden of proof upon the statute of limitations.

The decision was correct in reference to the question there raised, but erroneous in some of the positions as stated in the opinion given. Upon full consideration of the question in its broader aspect, as now presented, we find the weight of authority strongly in favor of the ruling adopted at the trial, that the burden in the present case was on the plaintiff to show that the cause of action did accrue within two years next before the suing out of his writ.

Exceptions overruled.

BURDEN OF PROOF ON PLEA OF STATUTE OF LIMITATIONS. — It is said by several text-writers that where the statute of limitations is set up in bar of a right of action, by a plea which is traversed, the burden of proof is on the plaintiff to show the commencement of the action within the statutory period: Abbott's Trial Evidence, 823; 2 Greenl. Ev., 14th ed., sec. 431. And this statement is supported unqualifiedly by some of the earlier cases: Hurst v. Parker, 1 Barn. & Ald. 92; S. C., 2 Chit. 249; Wilby v. Henman, 7 Tyrw. 957; S. C., 2 Cromp. & M. 658; Lawrence v. Bridleman, 3 Yerg. 496; Prig. more v. E. T. V. & Ga. R. R., 1 Lea, 204; Taylor v. Spears, 44 Am. Dec. 519. The court in the last case said (though the matter was not essential to the

decision) that the burden of proof on an issue of the statute of limitations rests on the plaintiff; and an instruction that the plea of the statute of limitations is an affirmative plea on the part of the defendant, and that in order to avail himself of it he must introduce proof to sustain it, is erroneous. In Lawrence v. Bridleman, 3 Yerg. 496, in an action of detinue for a slave, the lower court instructed the jury to the same effect. Plaintiff had proved his title to the slave, and defendant's possession. Defendant did not introduce any evidence to show his possession of the slave for the period required by the statute, to confer title by adverse possession. It was therefore believed that the defendant had not proved himself within the protection of the statute, even if it would apply. But the judge told the jury that the statute of limitations would be a bar to the plaintiff, if he, plaintiff, had not proved himself to be in possession within three years before the institution of the suit, and the appellate court approved of the instruction. In Huston v. McPherson, 8 Blackf. 562, it is held that if to a plea of the statute of limitations, in slander, the plaintiff replied that the words were spoken within the statutory period, he must prove such fact.

Different or limited rules are found in other and later cases. In the note to sec. 431, 2 Greenl. Ev., 14th ed., it is said that the statute is to be regarded as a defense to be set up by plea, the burden of proof to establish which plea is on the defendant, but that in doing so he may use the allegations of the complaint as admissions of the plaintiff, and thus shift the burden to the plaintiff of proving some exception. So it is held that the person relying on the statute of limitations must show the facts which put it in motion: Davenport v. Wynne, 44 Am. Dec. 70; and where this is done, it is said that the burden is on the plaintiff, or party against whom the statute is pleaded, to disprove the plea of the statute, or show facts which take the case out of its operation: Phillips v. Holman, 26 Tex. 276. Similar to these are the rulings of courts to the effect that if the bar of the statute prima facie exists, — i. e., if it appears from the face of the complaint, or upon the trial on introduction of plaintiff's evidence, the burden is then on the plaintiff to prove whatever he may rely on to take the case out of the operation of the statute: Capen v. Woodrow, 51 Vt. 106; Cook v. Cook, 10 Heisk. 466; Apperson v. Pattison, 11 Lea, 484; Spuryer v. Hardy, 4 Mo. App. 573.

The more reasonable rule would seem to be that which requires the defendant to first establish his plea that the action is barred, in whatever manner he may, before calling upon the plaintiff to prove that the action is not barred: Duggan v. Cole, 2 Tex. 381.

It is a settled rule, however, that one claiming the benefit of exceptions in a statute of limitations must bring himself within them by proof: Somerville v. Hamilton, 4 Wheat. 230; Howell v. Hair, 15 Ala. 194. Thus where infancy was pleaded, as operating to suspend the running of the statute: Yell v. Lane, 41 Ark. 43; Vail v. Halton, 14 Ind. 344; or that the party was a feme covert: Dessaunier v. Murphy, 33 Mo. 184; Edwards v. University, I Dev. & B. Eq. 325; or absence from the state: Phillips v. Holman, 26 Tex. 276, — it was held that the party setting up such disabilities against the bar of the statute must prove them. Likewise it is held that the burden is upon the party who relies upon other facts to remove the bar of the statute, such as part payment: Knight v. Clements, 45 Ala. 89; a new promise: Moore v. Leseur, 18 Id. 606; White v. Campbell, 25 Mich. 463; fraudulent concealment: Spuryer v. Hardy, 4 Mo. App. 573; Baldwin v. Martin, 3 Jones & S. 85; Godbold v. Lambert, 8 Rich. Eq. 155. A party claiming to have acquired title by the bar of the statute of limitations must prove the bar as against one who claims

ander an otherwise valid title: Stewart v. Cheatham, 3 Yerg. 60; Hood v. Hood, 2 Grant Cas. 229; Richardson v. Williamson, 24 Cal. 289; Greer v. Per kins, 5 Humph. 588; overruling, in effect, Lawrence v. Bridleman, 3 Yerg. 496, cited above.

STONE v. DICKINSON.

[5 ALLEN, 29.]

LIABILITY IS THAT OF JOINT TRESPASSERS where several different creditors, acting separately, without concert, and even without knowledge that they are employing a common agent, cause their debtor to be arrested on their several writs, by the same officer, who serves the writs simultaneously, and by virtue thereof the debtor is committed to jail, where he is confined upon all of such writs at the same time; and full satisfaction by the debtor, obtained from any one of such persons, is a bar to an action by him against the others.

ACTION for damages for false imprisonment. The opinion states the facts.

E. B. Stoddard and T. L. Nelson, for the defendant.

H. D. Stone, pro se.

By Court, BIGELOW, C. J. Several questions were raised at the trial of this case, upon which it seems to be unnecessary to express an opinion, inasmuch as we are satisfied that, on the facts offered to be proved, the defendant established a good defense to the action, and that the jury should have been instructed accordingly. There can be no doubt of the rule of law that co-trespassers are jointly, as well as severally, liable for the damages occasioned by their wrongful acts; and as a consequence of this, that a release to one joint trespasser, or satisfaction from him for the injury, discharges all: Brown v. Cambridge, 3 Allen, 474, and cases cited. This principle is applicable to the case at bar. In the opinion of the court, the several persons on whose writs and by whose order the plaintiff was committed to jail, and held in confinement from June, 1858, to February, 1860, must be regarded in law as cotrespassers. Evidence was offered at the trial to prove that he had received satisfaction from some of them for his alleged wrong, and had given to them, in writing, a discharge for the damages he had suffered by reason of his arrest and false imprisonment. This satisfaction and discharge in legal effect operate as a release of the present cause of action against the defendant.

It cannot be denied that the parties who were plaintiffs in

the original actions, in suing out their writs against the present plaintiff, and causing him to be arrested and imprisoned, acted separately and independently of each other, and without any apparent concert among themselves. As a matter of first impression, it might seem that the legal inference from this fact is, that the plaintiff might hold each of them liable for his tortious act, but that they could not be regarded as cotrespassers, in the absence of proof of any intention to act together, or of knowledge that they were engaged in a common enterprise or undertaking. But a careful consideration of the nature of the action, and of the injury done to the plaintiff, for which he seeks redress in damages, will disclose the fallacy of this view of the case. The plaintiff alleges in his declaration that he has been unlawfully arrested and imprisoned. This is the wrong which constitutes the gist of the action, and for which he is entitled to an indemnity. But it is only one wrong, for which, in law, he can receive but one compensation. He has not in fact suffered nine separate arrests, or undergone nine separate terms of imprisonment. The writs against him were all served simultaneously by the same officer, acting for all the creditors, and the confinement was enforced by the jailer on all the processes contemporaneously, during the entire period of his imprisonment. The alleged trespasses on the person of the plaintiff were therefore simultaneous and contemporaneous acts, committed on him by the same person acting at the same time for each and all of the plaintiffs in the nine writs upon which he was arrested and imprisoned. It is, then, the common case of a wrongful and unlawful act, committed by a common agent acting for several and distinct principals.

It does not in any way change or affect the injury done to the plaintiff, or enhance in any degree the damages which he has suffered, that the immediate trespassers, by whom the tortious act was done, were the agents of several different plaintiffs, who, without preconcert, had sued out separate writs against him. The measure of his indemnity cannot be made to depend on the number of principals, who employed the officers to arrest and imprison him. We know of no rule of law by which a single act of trespass, committed by an agent, can be multiplied by the number of principals who procured it to be done, so as to entitle the party injured to a compensation, graduated, not according to the damages actually sustained, but by the number of persons through whose in

strumentality the injury was inflicted. The error of the plaintiff consists in supposing that the several parties who sued out writs against him, and caused him to be arrested and imprisoned, cannot be regarded as co-trespassers, because it does. not appear that they acted in concert, or knowingly employed a common agent. Such preconcert or knowledge is not essential to the commission of a joint trespass. It is the fact that they all united in the wrongful act or set on foot or put in motion the agency by which it was committed, that renders them jointly liable to the person injured. Whether the act was done by the procurement of one person or of many, and if by many, whether they acted with a common purpose and design in which they all shared, or from separate and distinct motives, and without any knowledge of the intentions of each other, the nature of the injury is not in any degree changed, or the damages increased which the party injured has a right to recover. He may, it is true, have a good cause of action against several persons for the same wrongful act, and a right to recover damages against each and all therefor, with a privilege of electing to take his satisfaction de melioribus damnis. But there is no rule of law by which he can claim to convert a joint into a several trespass, or to recover more than one satisfaction for his damages, when it appears that he has suffered the consequences of a single tortious act only. Take an illustration. Suppose that several persons have a grudge or spite against the same individual, but that neither of them is aware of the existence of this feeling in the others; and that each of them, for the purpose of gratifying his malice, without concert or co-operation with any one, and in ignorance of a similar intent on the part of others, employs the same person -a hired pugilist or bully-to inflict on the common object of their ill-will a severe personal castigation.

In such a case, no one would doubt that all the persons who incited to the commission of the assault and battery would be regarded as co-trespassers. They each and all would be responsible for procuring the act to be done. They would be severally as well as jointly liable to an action in favor of the party injured. But no one would contend that he could recover satisfaction from each of the persons liable to an action. When the damages suffered by him had been once paid by any one of those who procured the commission of the trespass, he could not claim to recover them again from each of the others. The law will not permit a party to receive any.